Wisconsin Lawyer
Vol. 85, No. 6, June 2012

Child welfare authorities respond to a late-night report of an infant crying nonstop for many hours. After no one responds to repeated knocking, a social worker gains access to the apartment with the assistance of the landlord. A seven-month-old infant – "Rebecca" – is found in her crib in a urine-soaked diaper; her mother – "Angela" – is found unconscious on a couch, and numerous liquor bottles litter the floor. When roused, Angela cannot recall when she last fed the baby or changed her diaper. Angela's family lives out of state, and she refuses to identify Rebecca's father.

Clearly, Rebecca is not safe in her home. With whom should she be temporarily placed? When and under what circumstances can she safely be returned to her mother? What is the child welfare system's responsibility to help Angela resolve her substance abuse problem and secure the safe return of her daughter to her home? What is that system's responsibility to Rebecca's relatives – including the father and paternal relatives – to attempt to identify them and engage them in resolving the crisis facing Rebecca? How long should any child have to wait for his or her parent to resolve the safety issue before adoption or some other permanent alternative is pursued?

Whether Angela knows it or not – and she desperately needs to know it – if she does not successfully resolve her alcohol problem within 15 months, there is a strong likelihood her parental rights will be terminated and Rebecca will be made available for adoption.

The question for Angela and Rebecca is not whether there is a problem; the question is how to solve the problem. Can Angela resolve her substance abuse problem with help and safely care for Rebecca or must the child welfare system find Rebecca a new permanent home? If the legal system spends months of the 15-month limit litigating the fake issue of whether there is a problem, Angela has less time to resolve the real issues, and the safe reunion of parent and child is jeopardized.

Refocus the Child Welfare System on Practical Human Concerns

Child welfare issues present primarily practical human concerns. The principles of child welfare law, reflected mainly in the Adoption and Safe Families Act (ASFA) and the Fostering Connections to Success and Increasing Adoptions Act (the substantive provisions of which have all been incorporated in Wis. Stat. chapter 48, the Wisconsin Children's Code), are all conducive to the timely and appropriate resolution of these human issues.

However, too often the child welfare system focuses on false issues, engenders adversarial rather than collaborative relationships, and causes lengthy delay in addressing the most important issues. Children, parents, relatives, and substitute caregivers, whether relatives or foster parents, have a need and a right to understand the fundamental principles of the child welfare system, their obligations dictated by those principles, and how those principles affect the child and their relationship to the child. They have a need and a right to have the system focus on resolving the fundamental human issues. Most important, from the very first moment that the system intervenes, family members and caregivers must realize that timely resolution of the safety and permanency issues is crucial to the child's welfare.

The fundamental legal principles of child welfare law and how they interact to allow resolution of the safety issues affecting children are set out below with the hope that professionals and families involved in the system will embrace those principles to ensure timely and appropriate care and permanence for children whose welfare is threatened.

Children Who Can Be Safely Maintained in Their Homes Should Remain with Their Parents

The child welfare system cannot remove a child from the care of his or her parents unless it is contrary to the child's welfare to remain in the parental home; the child welfare system has made reasonable efforts to prevent the need to remove the child; and if the child is temporarily removed, the system has made reasonable efforts to safely return the child to the parental home.¹ There must be a sufficiently imminent and significant risk of harm to the child to justify the trauma involved in removing children from their parents. If the child's safety in the parental home can be reasonably ensured with supportive assistance from the child welfare agency, removal is not justified or authorized.

A child cannot be removed from the care of his or her parents merely because, in the view of the social worker, lawyer, or judge, removal would serve the child's best interests. Child welfare professionals work within the constraints of the constitutional protections accorded to parental rights. Those constitutional constraints can be summarized as follows: "Never best interests before unfitness." Child welfare authorities may not intervene to protect the best interests of children until the parents have demonstrated parental unfitness so as to justify and necessitate intervention.

Much more eloquently stated by the U.S. Supreme Court, the principle is this: "If a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest, I should have little doubt that the State would have intruded impermissibly on ‘the private realm of family life which the state cannot enter.'"²

Clearly, in our example, an imminent safety threat exists and warrants removal. However, whether Rebecca's prompt and safe return to Angela might be effectuated would depend on a variety of factors, including Angela's history of alcohol use; prior incidents of involvement with the child welfare system; Angela's commitment to abstinence and treatment; and the availability of relatives to temporarily co-parent Rebecca.

Children Who Must Be Removed From the Parental Home Should Be Placed With Fit and Willing Relatives

If your children were at risk because of your illness, substance abuse, mental health crisis, or other circumstances, you probably would want them to be cared for by relatives. In fact, if a family arranges placement with a fit family caregiver, there is no basis for child-welfare-system involvement. Relative placements can ease trauma for children if the relatives are people who know and love them. Such placements also make it far less likely that the child will become the rope in a tug of war over the issue of reunification with his or her parents.³

Placement with fit and willing relatives is strongly preferred under Wisconsin law.⁴ At the point of intervention, child welfare courts are required to ask parents about the identity of relatives who could provide substitute care for the child while safety issues are addressed.⁵ Courts must further ensure that child welfare agencies diligently search for fit relatives and try to enlist their help in managing the crisis for the child.⁶ Quite fortunately, and humanely, the law also strongly presumes that siblings should be placed together if they are removed from the care of their parents.⁷ This includes placement with birth siblings who have been adopted.⁸

The issue of paternity for children born out of wedlock is crucial in the initial stages of child welfare proceedings. Determination of paternity opens the constellation of paternal relatives as placement and support resources for the child. To that end, the statutes provide a summary procedure through DNA testing to determine paternity for purposes of the child welfare proceeding.⁹ It is imperative that child welfare courts resolve the issue of paternity as soon as possible.¹⁰

All good in theory; the devil is in the details. First and foremost, relatives must be both fit and willing; willing alone is not enough. Relatives with histories of serious criminal or child welfare violations may be willing, but they are not fit. Relatives who will not engage with the child welfare court and system to ensure that the child is adequately protected from his or her parents are not fit.

Also, families need to step forward in a timely fashion. As noted, the system has a duty to diligently search for fit and willing relatives. However, out-of-wedlock births often result in extremely attenuated familial relationships. Women sometimes resist disclosing identities of men who might be their children's fathers for very valid reasons, such as fear of domestic violence. Identified fathers are often difficult to locate, making paternal relatives difficult to locate.

If a fit and willing relative is not identified timely and the child is placed in foster care, relationships develop that are initially significant, and ultimately critical, to the child's emotional development. When significant time has lapsed, safe reunification is not viable, relationships to foster parents have become central, the child's long-term best interests should not be sacrificed on the altar of family preservation for the benefit of a late-identified and late-arriving relative.¹¹ As will be discussed below, timely permanence for children is presumptively defined as 15 months, and so family members need to be identified and step up promptly.

Safe Reunification is Presumptively the Best Outcome for Children

Safe reunification with family is presumptively the best result for children removed from the care of their parents by the child welfare system.¹² Child welfare agencies are obligated to make reasonable efforts to return children to the care of their parents.¹³ If parents, with the diligent assistance of child welfare authorities, can timely (a critical consideration discussed at length below) resolve the safety issues preventing them from appropriately parenting their children, the children can and should go home. "We acknowledge that in most cases in which a biological parent has successfully met the conditions of return the child can and should be returned to the parent."¹⁴

There are, however, parents to whom children should never be returned. If a parent has seriously abused or murdered one of his or her children or has previously had his or her parental rights involuntarily terminated, a court can, and almost invariably should, determine that the child welfare agency need not make reasonable efforts to prevent removal or safely return the child to the home. Instead, the court should order that the agency immediately pursue another safe permanency alternative such as adoption, guardianship, or permanent placement with a fit and willing relative.¹⁵

Timeliness is Everything

The Adoption and Safe Families Act (ASFA) was enacted specifically to address foster care drift: leaving children interminably in the uncertainty and instability of temporary foster care. Wisconsin law specifically decries "impermanence and instability in family relationships" and requiring children to wait "unreasonable periods of time for their parents to correct conditions that prevent their safe return to the family."¹⁶ This impermanence is "contrary to the welfare of children."¹⁷

The ASFA's key strategy to avoid impermanence for children in the child welfare system is permanency planning. A permanency plan is "a plan designed to ensure that a child is reunified with his or her family whenever appropriate, or that the child quickly attains a placement or home providing long term stability."¹⁸ Courts are required to determine whether reasonable efforts are being made to timely achieve that goal at six-month intervals.¹⁹ In doing so, courts must ensure that the agency is assisting the parents in resolving the safety issues by providing appropriate services.²⁰

It is crucial for families to understand that the presumptive window within which they must, with the assistance of the agency, resolve the safety issues and demonstrate an ability to safely parent is 15 months from the date that the child is removed from the home.²¹ If this 15-month deadline is not met, the agency is required, absent a compelling circumstance, to petition for termination of parental rights or seek some other permanent solution for the child, such as guardianship.²²

Former Milwaukee County Circuit Judge Joseph Wall characterized termination of parental rights as the "civil death penalty." Fairness demands that parents know as of the very first moment when their children are taken from their care that if the parents cannot or will not fix the problems, with the assistance of the child welfare authorities, within 15 months, there is a substantial likelihood that they will no longer be parents to their children.

At temporary physical custody hearings (the first hearing conducted within 48 hours after the removal of the child), judges need to explain in understandable terms what the safety issues appear to be; what the parent needs to do to resolve them; and that if the issues are not resolved within 15 months, there is a substantial likelihood the children will be adopted or permanently placed in another home. Often at these hearings, the participants – lawyers, judges, child welfare authorities, parents – get caught up in the legal minutia. The result is that parents often do not get this very clear and important message: You have 15 months to fix this problem or face permanently losing your child. The clock is ticking. Although parents are often agitated and frustrated at those hearings, it is a critical opportunity to motivate them and encourage them to collaborate with the child welfare system to resolve the problem rather than engage in an adversarial, misguided, and time-consuming legal shell game.

Conclusion

Child welfare cases present primarily practical, human issues, not theoretical, legal issues. Seldom is the question whether there is a problem; the question is how to solve the problem. Spending large amounts of time, money, and energy pretending that there is a legitimate issue as to the existence of a problem substantially impedes parents' ability to timely resolve the safety issues and secure the return of their children to their care within the presumptive window afforded to them for that purpose. It often also engenders an adversarial relationship between families and child welfare professionals, which is highly counterproductive.

The legal system has a legitimate role to play in child welfare cases. Certainly the issue of whether there was a justifiable basis for the system to intervene – whether there is a basis to interfere with the parent's fundamental liberty interest – is a critical role. As noted, however, in my 20-plus years of involvement in child welfare cases, I have found legitimate disputes in that regard to be very infrequent. The legal side of the child welfare process needs to fulfill this role promptly and allow social service professionals and families to focus their energy, efforts, and resources on resolving the safety issues affecting children.

Courts must ensure that child welfare authorities are diligently pursuing permanent living situations for children through the permanency planning process. When safe reunification is viable, courts must ensure that the agency is truly assisting parents in eliminating safety concerns and demonstrating the ability to safely parent. When safe reunification is not viable, courts must ensure that children achieve alternative permanence. In either event, the solution for children must be timely. It is that simple and that important to children and families.

Angela has a drinking problem, which is significantly and imminently threatening her daughter's safety. The system – and Angela – should not pretend there is not a problem warranting intervention and potentially waste months in resolving the problem. She needs to timely resolve this problem and demonstrate a capacity to safely parent Rebecca within 15 months.²³ If she does not, there is a substantial likelihood that she will not be a parent to her daughter any longer because Rebecca needs a permanent, safe, and stable home.

Endnotes

¹ Wis. Stat. § 48.21(5).

² Smith v. Organization of Foster Families, 431 U.S. 816, 862-63 (Stewart, J., concurring) (citing Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). See also Troxel v. Granville, 530 U.S. 57, 68-69 (2000).

³ See Sallie T. v. Milwaukee Cnty. Dep't of Health & Human Servs., 219 Wis. 2d 296, 581 N.W.2d 182 (1998); Richard D. v. Rebecca G., 228 Wis. 2d 658, 599 N.W.2d 90 (Ct. App. 1999).

⁴ Wis. Stat. §§ 48.355(1), 48.38(1)(bm).

⁵ Wis. Stat. § 48.21(3)(e).

⁶ Wis. Stat. § 48.21(5)(e).

⁷ Wis. Stat. § 48.21(5)(b).

⁸ Wis. Stat. § 48.38(4)(br)1.

⁹ Wis .Stat. § 48.299(6)(e).

¹⁰ A child can be placed with an alleged father or alleged paternal relative, if the person is otherwise fit and willing, while the issue of paternity is resolved in the court that has jurisdiction over the CHIPS proceeding. Wis. Stat. § 48.207(1)(f).

¹¹ Cf. Smith v. Organization of Foster Families, 431 U.S. at 844. "At least where a child has been placed in foster care as an infant, has never known his natural parents, and has remained continuously for several years in the care of the same foster parents, it is natural that the foster family should hold the same place in the emotional life of the foster child, and fulfill the same socializing functions, as the natural family." Id.

¹² Wis. Stat. §§ 48.01(1)(a), 48.38(4)(ag).

¹³ Wis. Stat. §§ 48.21(5), 48.38(4)(ar).

¹⁴ Sallie T., 219 Wis. 2d at 311.

¹⁵ Wis. Stat. §§ 48.21(5)(b)3., (d), 48.355(2d)(b), (c).

¹⁶ Wis. Stat. § 48.01(1)(a).

¹⁷ Id.

¹⁸ Wis. Stat. § 48.38(1).

¹⁹ Wis. Stat. § 48.38(5). The statute allows the court to designate a panel to review the plan and determine if reasonable efforts have been made to timely achieve permanency at six-month intervals. However, the court can conduct all reviews and must conduct reviews at the 12-month intervals.

²⁰ Wis. Stat. § 48.38(4)(f).

²¹ Wis. Stat. §§ 48.417(1)(a), 48.365(1).

²² Wis. Stat. § 48.417. Compelling circumstances include that no termination-of-parental-rights grounds can be established or that termination of parental rights is not in the child's best interests; the agency has not made reasonable efforts to achieve the permanency goal; the child is with fit and willing relatives who do not wish to adopt; and, in the case of an Indian child, the agency has not made active efforts to prevent the breakup of the Indian family and provide the services to that end.

²³ Milwaukee County, under the leadership of Judge Karen Christensen, has recently started a family drug court dedicated to helping substance-abusing parents achieve sobriety and safely parent their children.

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