Friday, December 24, 2010

J.W. and collective self-delusion

This case will be heard on January 27. Both parents are appealing the termination of parental rights. Only one appellant brief has been filed so far, and nothing from the appellee (Morton County Social Services).

According to the appellant brief, J.W.'s mother was found to have used meth before J.W. was born. She has been on probation, although the reason for probation is not specified. J.W. never went home with his mother. He  has lived with a couple in Kentucky (names are provided, no information about relationship) "against the advice of Social Services" but based on parent preference. That statement is odd--Social Services has had legal custody, after all. How did the arrangement come about? Did a juvenile court referee sanction the placement?

At any rate, the appellant brief doesn't have a lot to say. There has been no contact between parents and J.W. for the state reason that J.W. was too young to talk on the phone or read letters. What the brief does say is that J.W.'s mother has completed substance abuse evaluation and treatment and has never tested positive for drug use in the time--two and a half years--since the baby was taken into custody. It also says that the mother never believed she would ever be allowed to have her child. "Reasonable efforts" is not listed as an issue for appeal, but the appeal does claim that the juvenile court erred when it ruled that such efforts have been made.

The brief also mentions a probation revocation hearing--it doesn't say what the outcome was of the hearing, and curiously also says that the probation officer who filed for revocation also stated that J.W.'s mother had carried out probation requirements.

I don't know whether it is better legal strategy to say little in an appeals brief. Maybe it just means what is often the case--the lawyers don't get to know the clients well enough, and they are out of the picture completely (in most cases) in between the legal milestones. It's in those in-between stretches, when nobody is looking over their shoulders, that social services really makes its decisions. By the time the lawyer gets into the game, he or she is dealing--really--with abstractions. If J.W. thought nobody was ever going to let her have her baby, very likely things had been said somewhere along the line that made her believe that.

North Dakota law concerning reasonable efforts seems pretty darn loose to me. It is contained in a section of state law called the Uniform Juvenile Court Act, so much of the language is a verbatim copy of language from other states' statutes. But the laws do vary.

According to North Dakota law, reasonable efforts can stop when the court says it's ok--but they can also stop when the agency decides it's ok, no court action required. Sometime in between a deprivation hearing resulting in a foster care order, and the expiration of that order, an agency might do just that--decide it is not interested in pursuing reunification (and maybe has expected this all along). The decision may or may not be explicit. Sometimes case plans don't actually state whether the goal is reunification (this must be how it is that a social worker can testify that the plan was just to improve the parent as a person, not to get them and their child back together).

We need to get rid of statutory language empowering social services agencies to unilaterally decide they no longer have to make reasonable efforts. Period.

There's more: the law in North Dakota says that reasonable efforts have to be in compliance with federal Title IV-E and IV-B requirements--but it doesn't matter. As long as any court order is valid under all other sections of state law, non-compliance with federal law cannot void the order. Hard to know what the point is of even mentioning the federal requirements, isn't it? (Federal child welfare law does not confer a "private right of action" in federal courts either--so there really is no consequence to anyone if the agencies disregard federal provisions that might, in theory, support families.)

And a third problem with "reasonable efforts" in North Dakota: the courts seem to consistently find that such efforts have been provided. Of course, all we get to look at are the appeals cases--but I think you can pretty much tell the overall legal winds from what the appeals cases say.  But flying in the face of this persistent conceit are the federal child welfare reviews (and, currently, regional self-reviews the state is doing) which conclude that in a fairly large percentage of cases sampled, the agencies are not doing what they are supposed to do, especially in terms of involving families in case planning. Makes me think that collective self-delusion is a fairly pervasive phenomenon in our juvenile courts.

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