Parents’ Constitutional Right to Legal Representation When CPS Takes Their Kids Routinely Violated Leading to Greater Child Kidnappings by the State
by Brian Shilhavy
Editor, Health Impact News
Since we have started covering the medical kidnapping issue here at Health Impact News, we have frequently pointed out that when child protection social services (CPS) removes a child from their home, parents have fewer legal rights than rapists, murders, or terrorists.
When someone is arrested on suspicion of murder, rape, assault, robbery, and other serious crimes that are a threat to the public, those arrested enter into the criminal justice system, and have rights that are protected under our Constitution to ensure they are not victimized by the over-reach of government abuse.
Unfortunately, these alleged criminals are afforded more rights than parents are today, who have their children removed from their home or custody with no arrest and no trial.
Murderers, Rapists, and Terrorists have More Rights to Due Process of the Law than Parents Accused of Child Abuse
All it takes to have one’s children seized by CPS is an anonymous call making a claim against the parents, or a doctor reporting the parents to CPS for not taking their advice and wanting a second opinion, etc.
Since each child placed into foster care represents a huge monetary value to the state, the incentive to make sure parental rights are preserved is very low.
Judges in Family Courts routinely abuse parental rights, including issuing gag orders against the parents in an attempt to stop them from sharing their stories with the media – a clear violation of the First Amendment.
In most of these cases, the parents are either not represented with an attorney, or represented with an appointed attorney that only tries to reach a settlement, not fight for the parents’ rights.
There have been multiple times where parents have shared their stories with us and we then published them on our MedicalKidnap.com website, bringing to light the injustices of state-sponsored child kidnappings, and then a judge ordered the parents to contact us and demand that we take down their stories.
This happens frequently in Arizona, where even the Assistant Attorney General Colleen O’Donnell-Smith has gotten into the act and demanded we take down one of our stories by trying to intimidate the parents:
Arizona Attorney General Demands Health Impact News Take Down Story on Medical Kidnapping in Violation of 1st Amendment
The most recent example is an email we received a few days ago from one of the parents in this story:
Arizona Twin Boys Suffering from Environmental Illness Medically Kidnapped from Parents Feeding them Organic Diet
We kindly request that any posts relating to Dylan and Kenan be removed from your site, pursuant to court order.
Health Impact News has NEVER complied with these court orders and removed a story, as they are a clear violation of the First Amendment protecting free speech and freedom of the press.
With their children being held in state custody, however, the parents suffer from these legal abuses, and usually take down their Facebook pages and all other public information explaining their side of the story and how the state abused their rights.
And while the state is claiming they are protecting the privacy of the children with such court orders, they have no qualms about displaying the images of these children on adoption sites after they are placed into foster care.
Statistics show that a very small percentage of children seized by CPS are actually for reasons of abuse, with the far majority removed for the much broader scope of “neglect,” which could be something as simple as having too many dirty dishes in one’s sink, or allowing a child to go outside barefoot in the summer time.
Large-scale studies of children in foster care also clearly show that a child is far more likely to be abused and sexually trafficked in foster care than in “troubled homes.”
While we agree with the late Georgia Senator Nancy Schaefer that the child welfare system in the U.S. is too corrupt to reform and needs to be abolished, and with the former Director for the Baltimore City Department of Social Services Molly McGrath Tierney that the whole premise behind foster care is “a bad idea” and that instead “kids ought to be in families,” there is some evidence that when parents have good legal representation at the very beginning when they are investigated by CPS, far fewer children are removed from their homes.
That begs the question: why aren’t most states providing proper legal representation of parents under investigation by CPS, which is in fact their Constitutional right?
Richard Wexler, the Executive Director of the National Coalition for Child Protection Reform (NCCPR), and attorney Vivek S. Sankaran, Clinical Professor of Law at the University of Michigan and director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic, have recently addressed this issue.
Federal Funding Available for Family Attorneys, but Few States Appropriating it
Richard Wexler recently wrote an op-ed piece for Youth Today where he again criticized the Family First Preservation Services Act, passed in 2018, as an ineffective bill in terms of helping families keep their children out of foster care. (See: Don’t believe the hype. The Family First Act is a step backwards for child welfare finance reform.)
A better hope for families, according to Wexler, is a policy shift recently made by the federal Administration for Children and Families (ACF).
[T]he federal Administration for Children and Families (ACF) made a policy change that has the potential to do vastly more to help children and families.
The federal government has just made it easier for states to provide what I have come to believe is the most important single service to help families who come into contact with child protective services agencies: high-quality legal representation.
You can raise the absurdly low standard of proof for removing a child or narrow the absurdly broad definitions of “neglect” in state laws, but as long as the judge is hearing only the child protective services (CPS) agency’s side of the story, she or he almost always will rubber-stamp the agency, no matter what the law says.
Technically, the family might have a court-appointed lawyer — or they might not; it varies from state to state.
But even when there’s a lawyer, it’s usually an overworked public defender with an enormous caseload who either just met his or her client five minutes before the first court hearing or wasn’t appointed until after that hearing, when it’s often too late.
In most of the country most of the time, families up against CPS are, literally, defense-less. (Source.)
Wexler goes on to use New York City as one of the few good examples where federally allocated funds have been used to provide families with good attorneys, with the result that the rate of children being taken out of homes and entering into foster care dropped considerably.
[M]ost families in New York City get a high-quality defense team: a lawyer with a reasonable caseload, a social worker and often a parent advocate, someone who’s been through the system and can help guide families caught up in it. The method was pioneered by the Center for Family Representation (CFR).
As CFR’s director, Michele Cortese explains:
“Over half of CFR’s clients’ children never enter foster care, and of those that do, their lengths of stay in care are far shorter than they were before CFR, and they rarely re-enter care.
We estimate we’ve saved $37 million in foster care costs, but more important, we’ve saved hundreds of children from the devastating impact of being taken from their families, schools, friends and communities when that was not necessary. …” (Source.)
According to Wexler, this achievement in New York was possible because of the ACF’s policy change that allows federal “Title IV-E” funds to be used to provide parents good attorneys.
So why is this not being implemented in most other places across the country? Because basically, it is like implementing a good system that exposes the faults of your current system and puts you out of a job.
As Wexler explains:
It’s the simple fact that it requires people with power to share it.
Child welfare agency leaders who support high-qualify family defense are supporting people who will, in effect, look over their shoulders and, often, tell them they’re wrong.
In New York, for example, that’s meant that, in hundreds of cases, judges send children back home at the very first hearing, because good family defense teams came up with better alternatives to foster care or persuaded the judge that the placement was wrong in the first place.
Most leaders don’t have that kind of confidence. Even many reformers shy away from such challenges. Their view boils down to: But we’re the good guys, we respect families, we don’t need anyone telling us to do better.
And the worse an agency is performing, and the more arrogant its leadership, the less it wants anyone to even see, much less challenge, what they’re doing. So when Monroe County (metropolitan Rochester), N.Y., had a chance to provide this high-quality legal representation at no cost at all through a state grant, it actually turned the money down. So did Dutchess County, N.Y. The grant money went unused because no county was both willing and able to use it. (Source.)
Law professor Vivek S. Sankaran addressed this same issue with an article published in the Notre Dame Journal of Legislation, Moving Beyond Lassiter: The Need for a Federal Statutory Right to Counsel for Parents in Child Welfare Cases.
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 although a parent may technically have a right to a lawyer, that lawyer need not be effective.
The United States Supreme Court has repeatedly recognized that a parent’s right to direct the care of her child is one of the oldest and most fundamental rights protected by the Constitution.
How that right is safeguarded, however, when the State seeks to strip a parent of that right—either temporarily or permanently—can vary significantly. (Source.)
Professor Sankaran writes that the Supreme Court failed to “create uniformity in how states protect the right to parent” twenty-five years ago, in the Lassiter v. Department of Social Services case, leaving a void for parents that now needs to be addressed at the federal level.
Like Wexler, he points to the ACF which provides policies for states that receive “billions of dollars to administer their child welfare systems” as a source to provide funding for attorneys to represent parents who face losing their children to CPS.
…the ACF issued a powerful and detailed policy memorandum…. calling for states to provide parents with “high quality” counsel “at or before the initial court appearance in all cases.”
In fact, in the memorandum, the ACF concluded that the lack of competent legal counsel was a “significant impediment to a well-functioning child welfare system.”
This memorandum, however, as Wexler also noted in his article, is not enough to make states comply.
Yet despite its strong language, the memorandum lacked a critical piece—specific actions the Federal Government would actually take to ensure that parents in every state receive the effective assistance of counsel.
Professor Sankaran’s article then proceeds to outline what needs to be done at the federal level to ensure parents receive proper legal representation.
This Article seeks to fill that void and proposes specific steps that the Federal Government must take.
It argues that Congress should include—among its existing conditions for states to receive federal child welfare funds under Title IV-E of the Social Security Act—an explicit requirement that states provide parents with the assistance of counsel at the first court proceeding in every child welfare case.
Taking these steps would dramatically improve the legal representation that parents receive when their fundamental rights are jeopardized and would create much needed uniformity across the country. An indigent parent’s ability to protect a fundamental constitutional right will no longer vary depending on her misfortune of living in a particular state.
While Congress could pass legislation mandating states to use federal funds in this way, Sankaran recognizes that this is a long and difficult process, and that there are immediate steps ACF can take in the meantime:
Persuading Congress to amend Title IV-E to both require and fund adequate parent representation is a long-term goal, given the length of time any legislative campaign takes.
In the meantime, ACF can take two immediate steps to solidify the federal government’s recognition of the importance of parent representation.
Sankaran’s article details these steps. He concludes:
Every day, parents lose temporary and permanent rights to direct the care of their children without the assistance of an adequate attorney. This reality undermines our sense of justice, harms children, and wastes scarce public funds. But, because of the Supreme Court’s decision in Lassiter, federal and state appellate courts are largely powerless to remedy this crisis.
The Federal Government could—and should—take immediate steps to fix this.
Congress should amend Title IV-E of the Social Security Act to require states to provide parents with the assistance of counsel at the first court hearing and should make clear that funds under the Act can be used by states to support parent representation.
Until that happens, the Administration for Children and Families should clarify that states can recoup costs related to parent representation as administrative costs under Title IV-E and should encourage states to submit child welfare demonstration projects if Congress reauthorizes the program.
These steps are a crucial next step to implementing the strong language in ACF’s 2017 information memorandum in which it highlighted why a functioning child welfare system must provide strong parent representation.
This is a non-partisan issue. Whether you are Democrat, Republican, or Independent, send copies of Wexler and Professor Sankaran’s articles to your federal representatives, asking them to take the steps to amend Title IV-E of the Social Security Act to require states to provide parents with the assistance of counsel.
If you yourself have been abused by CPS, share your own personal story. Share this article or any other article we have published on this issue here at Health Impact News.
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Original source: http://medicalkidnap.com/2019/02/19/parents-constitutional-right-to-legal-representation-when-cps-takes-their-kids-routinely-violated-leading-to-greater-child-kidnappings-by-the-state/