What Every Parent Should Know About Child Protection Services: June 2017

Thursday, June 29, 2017

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Guide To Child Protection Services

WHAT EVERY PARENT SHOULD KNOW INFORMATION ALL PARENTS NEED TO KNOW Thursday, November 1, 2012 Guide to CPS Guide to CPS Child Protective Services (CPS) is a part of Division of Children, Youth and Families (DCYF) within the Arizona State Department of Economic Security and works on behalf of children and families of Arizona. The role of CPS is to ensure the safety of children while maintaining the integrity of the family. When allegations of child abuse or neglect, exploitation or abandonment indicate the need, Arizona law requires that CPS conduct an investigation. One of the most important functions of CPS is to help families receive the services necessary to enable them to remain together and to build better family relationships. The Goal of Child Protective Services Child Protective Services helps families by strengthening the ability of parents, guardians or custodians to provide good child care. Its primary objective is to keep children safely within their own families. CPS works cooperatively with parents to make that happen. Some Basic Information About Child Abuse And Neglect Sometimes parents, guardians or custodians take actions that create a danger to children in the home. Failure to protect children also may result in their being abused or neglected. There are several types of abuse and neglect: * Physical abuse includes nonaccidental physical injuries such as broken bones, bruises, burns, cut or other injuries. * Sexual abuse occurs when there is sexual conduct or contact with children. Using children in pornography, prostitution or other types of sexual activity is also sexual abuse. * Neglect exists when parents, guardians or custodians place children at substantial risk of harm by not providing children with adequate food, clothing, shelter, supervision or medical care. Neglect includes: - parents leaving a child with no one to care for them or leaving a child with a caretaker and not returning or making other arrangements for their care. - Allowing children to live in a hazardous environments. - Using a child for material gain including forcing a child to panhandle, steal or perform other illegal activities. * Emotional abuse or neglect occurs when a child suffers severe anxiety, withdrawal, depression or other severe emotional disturbance due to acts or omissions by the parent or caretaker. How CPS Receives Information About A Family Any individual or agency representative may call CPS to report that a child is not receiving adequate care or protection or that a family might benefit from services. This report can be made by a doctor or nurse, teacher, counselor, social worker or any other concerned person who is aware of the situation. Arizona law requires certain people, such as doctors and psychologists, to make a report to CPS or the police when they suspect that a child is being abused or neglected. When CPS receives information concerning possible abuse or neglect, the report is screened to decide whether investigation is necessary. If so, the report is then ranked according to its seriousness and a decision is made about how quickly the investigation will begin. How CPS Investigates Reports of Child Abuse The law requires Child Protective Services to investigate appropriate reports of suspected child abuse or neglect. To do this, the law allows CPS to talk to alleged victims and their siblings without parental permission. Often this occurs at school because it is a neutral environment. All CPS records are confidential. A CPS representative may visit the family home to discuss the report and to talk about the family situation. At the time, suggestions may be offered regarding help that is available to assist the family. Parents and other individuals have the right to refuse to be interviewed by the CPS representative, to provide information and refuse services offered. However, CPS may proceed with the investigation and file a dependency petition in the juvenile court when it is necessary to protect a child How A Substantiated CPS Investigation Finding Is Appealed After an investigation, if CPS has reason to believe that a parent, guardian or custodian abused or neglected a child and intends to confirm this, a letter will be sent to the person accused explaining how an appeal of this decision may be requested and how to get a copy of the CPS report. If an appeal is requested, the Division of Children, Youth and Families (DCYF) Protective Services Review Team (PSRT) will review all information and determine if there is enough evidence to agree with the decision made by CPS. If the PSRT disagrees with the decision made by CPS, the person accused will be sent a letter and the abuse or neglect will not be substantiated. If the PSRT agrees with the CPS decision, a hearing will be scheduled for the person accused with the Office of Administrative Hearings. At this hearing, an Administrative Law Judge will hear all the evidence and make a decision about the allegation and finding. The Police And Child Protective Services Suspected child abuse or neglect may be reported either to the police or to Child Protective Services. Both agencies share these reports with the other agency. Although CPS cooperates with the police, the focus of its assessment is different. CPS seeks to protect children and to maintain and stabilize families, not to arrest or prosecute parents. When A Child Needs Protection Few of the children who are reported to Child Protective Services are removed from their homes. In most situations where verified family problems exist, the families and CPS work together cooperatively to resolve them. However, under certain circumstances, the law does allow a police officer or a CPS representative to remove a child for up to 72 hours (not counting weekends and holidays) for protection while the investigation takes place. Within 72 hours, the child must be returned home or a dependency petition filed in the juvenile court. A child also may be removed for up to 12 hours for a medical or psychological evaluation. If the CPS investigation shows that the child must remain out of the home for a longer period to protect him/her from harm, CPS arranges for safe, temporary care. The decision to remove a child is not made by one person. The CPS case manager discusses each case with a supervisor. When a child is in temporary custody and a dependency petition is being considered, the law requires that a removal review team composed of certain people to assess the case, and alternatives to continued out-of-home placement and services. The review team includes the CPS case manager, a CPS supervisor, a member of a local Foster Care Review Board (FCRB) and a child's physician, if the child has a medical need or chronic illness. Other professionally qualified persons may also participate in the removal review. If requested by a parent, guardian or custodian, staff from the department's Family Advocacy Office will also participate in the review of a child's removal, before a dependency petition is filed. In order to ensure sufficient time for the review of the removal, please make this call with 48 hours (not including weekends and holidays) of receiving the temporary custody notice. In certain situations, parents and CPS may agree to place a child in voluntary foster care as an alternative to a dependency petition. This service, limited to a 90-day period, is entered into only when families are willing and able to resolve problems within the allowed time frames. Written consent of the parents as well as the child, if age 12 or older, is required. Any time beyond 60 days of the child's initial out-of-home placement will be counted for termination of parental rights purposes if: * a dependency petition is filed * the child is made a ward of the court, and * the case plan is termination of parental rights based on length of time in out-of home placement. What Happens When A Child Is Removed From The Home When a child is removed from home for protection from immediate harm. he/she is placed in a licensed foster home, shelter, other licensed family or with a parent or relative. A written notice, called a Temporary Custody Notice (TCN), CPS-1000A, is given to the parent, guardian or custodian stating the reason for removal and the circumstances that placed the child at imminent risk of harm. The Temporary Custody Notice will include information about a Preliminary Protective Hearing, obtaining an attorney, a meeting to be held, if a dependency petition is filed with the juvenile court and rights and responsibilities, services available, and agencies to contact for assistance. If a hearing date is not known when the Temporary Custody Notice is served, CPS will give you a notice of the date and time of the Preliminary Protective Hearing within 24 hours. This hearing will be held within 5 to 7 days. How To Get A Lawyer The court will appoint a lawyer to represent the parents and if they cannot afford the lawyer's fee, the court provides legal representation without charge. The Temporary Custody Notice will tell you how to contact an attorney, or this information will be included on the notice of Preliminary Protective Hearing delivered by the CPS case manager within 24 hours after the dependency petition is filed. The parents may consult with the lawyer at any time and have the lawyer represent them at all hearings concerning the children and their parental rights. Any disagreements with CPS may also be discussed with the lawyer. If parents do not have an attorney before the Preliminary Protective Hearing, or Initial Dependency Hearing, they may make this request at the hearing or at any other time during court involvement. The Preliminary Protective Hearing When a dependency petition has been filed, a Preliminary Protective Hearing will be held within 5 to 7 days from the child's removal. You must talk to your attorney before this hearing and come to a meeting before the hearing. Other people can come to this meeting, including relatives, witnesses, or others with whom the child might be placed. At this meeting, efforts will be made to try and reach an agreement about the child's placement, services that should be provided and visitation with the child. The results of this meeting will be discussed at the hearing. At the hearing the court will make orders about the child's placement, visitation and tasks and services to be provided. If the parent or guardian denies the allegations in the petition, the court may set a date for an initial dependency hearing. The Initial Dependency Hearing An Initial Dependency Hearing will be set within 21 days after the petition is filed. At this hearing the court can declare the child "dependent" or set other conferences or mediation. After a child has been declared "dependent" the court holds a review hearing at least every six months. The purpose of this hearing is to evaluate the progress made in solving family problems. At this hearing, the court also reviews the child's placement and placement and decides if its continued involvement is necessary. The court is also required by law to hold an Initial Permanency Hearing if a child has been in out-of-home care at least one (1) year. The purpose of this hearing is to determine if the child would be safe if returned home, or if another permanent plan, such as adoption, guardianship or long-term care is the most appropriate plan for the child. Case Plans And Staffings The assigned CPS case manager develops a proposed case plan for every case within 21 days of case assignment. If dependency petition has been filed, this case plan must be a part of the report that is submitted to the court at the time of the Preliminary Protective Hearing. The case plan identifies the goal, objectives, tasks or services to be provided, responsible persons and time frames. The parents should actively participate in the development of the case plan and the case manager must provide parents with a copy of it. As soon as possible but not later than 60 days after case opening, the case manager arranges a staffing. Staffings are meetings held with parents and others who are providing services to the family to develop or review the case plan. At the first staffings the permanent case plan is developed. It includes specific details about case objectives, services that will be provided, who will be responsible for providing them and how long they will continue. Parents are encouraged and expected to be involved in this planning process. Staffing also provide an opportunity for all participants to discuss progress, exchange ideas and suggestions, and to work together cooperatively to resolve family problems. Regular staffings are scheduled at least every six months to discuss case progress. Visitation Visitation with children in the custody of DES is approved on a case by case basis. All case plans for children in out-of-home care include a Visitation Agreement which is developed by the case manager and family members. Family members include persons who are related by blood or law, are legal guardians, siblings, or adults with a meaningful relationship with the child. Family members should contact the child's case manger to request visitation. The Foster Care Review Board (FCRB) When a child is placed outside his/her own home, the FCRB reviews the case within six months of the original date of placement and every six months after that while the child remains in out-of-home care. The function of the FCRB is to review the case plan, and progress toward its goal and objectives and to make sure the child is receiving good care. The FCRB is made up of community members who are appointed by the juvenile court judge in each county. They are not employed by DES or by the court. The FCRB makes recommendations to the court about individual cases but has no decision-making authority. The court considers the recommendations of the FCRB with other information such as evidence and testimony from parents, case managers and attorneys. The Court-Appointed Special Advocate (CASA) Program In selected cases, the court may appoint a Court-Appointed Special Advocate (CASA) to help with a case. CASAs are trained volunteers whose primary responsibility is to represent the child's best interests. CASA volunteers are members of the service team, have access to case records, attend staffings, FCRB reviews and court hearings and may be involved in all case-related activities. From their unique perspective as the child's special advocate, CASAs prepare reports to the court for all court hearings and may testify on the child's behalf. The purpose of this program is to ensure that everything is being done to help reunify the family and achieve a safe, permanent home for the child as quickly as possible. If A Child Is Placed In Foster Care All foster homes and other facilities used by CPS to provide temporary out-of-home care are licensed by the state and supervised by an assigned licensing worker. Foster parents are trained to provide care and to work with CPS and family members toward the goal of family reunification. CPS case managers visit regularly with children and foster families to ensure that the necessary services, including medical care, are being provided and to monitor the child's progress. Whenever possible, children needing protection are placed with members of their extended family. Placements with relatives may occur during the period of temporary custody or at any later time. Relatives providing such placements must agree to a background investigation, a home evaluation, and sign an agreement with CPS that specifies the conditions of placement. Services Are Available For Family The Department of Economic Security provides services to help families deal with problems and work toward the goal of family reunification. Usually, there is no charge for these services. The CPS case manger talks with family members to decide what is needed. There are also other agencies or groups in Arizona that offer help. Services that may be suggested include: * Help in getting food, housing, clothing and medical care. * Intensive family preservation services. * Psychological evaluations. * Individual, family or relationship counseling. * Day care. * Parent aide services * Parenting skills training. * Educational programs, job training or vocational rehabilitation. * Sexual assault or domestic violence counseling. * Drug or alcohol treatment programs. * Peer self-help groups. Parents Have Responsibilities too During Child Protective Services involvement, parents are expected to: * Work with CPS to solve family problems. * Attend and participate in case staffings, FCRB reviews and court hearings. * Provide CPS with information about the children. * Keep CPS informed about changes such as a new address, telephone number, job, income, marriage, or other living changes. * Follow court orders. * Visit children regularly when they are in out-of-home placements. * Contribute to the cost of children's out-of-home care. * Keep appointments made with CPS, attorneys, therapists and others who are working with the family. When Children Return Home The goal of CPS is to return every child who has been removed to a safe and permanent home. The agency helps parents in solving problems and making a safe living situation for their children. Although the CPS case manager may recommend that a child return home, the court makes the final determination about when the child is returned. CPS works diligently with families to reunify them as quickly as possible and usually continues to provide needed services for some period after family reunification has occurred. Additional Information And Help Is Available The Parent Assistance Program is a service designed to help parent or guardians. This program, operating through the Administrative Office of the Courts, provides a 24-hour toll-free hotline to assist parents with their questions and concerns about CPS. Through the hotline, parents may obtain information about legal assistance, the juvenile court system and their legal rights and responsibilities. Trained hotline staff may also provide crisis counseling and referrals to appropriate agencies or individuals. To contact the parent assistance program call: Phoenix: (602) 542-9580 Statewide toll-free: 1-800-732-8193 The Family Advocate's Office Upon request by the parent, guardian or custodian, the Family Adovate Office will immediately review the removal of a child by CPS before a dependency petition is filed. The family Advocate Office accepts requests for removal reviews received within 72 hours of the date and time the Temporary Custody Notice (TCN) was served; however, since dependency petition need to be filed within 72 hours of the child's removal, in order to ensure sufficient time for the review of the removal, please contact the Family Advocate Office within 48 hours (excluding weekends and holidays) of receiving the TCN. The DES Family Advocate's Office is also available to provide additional information or assistance to parents. The responsibility of the Family Advocate is to handle inquiries, concerns and complaints/grievances about CPS. This office explains procedures to parents and other concerned individuals, assesses clients' needs and attempts to resolve problems. The Family Advocate may review case records, and working in coordination with CPS, initiates the problem-solving process. To contact the Family Advocacy Office call: Statewide toll-free: 1-877-527-0765 Phoenix: (602) 364-0777 The DES Client Advocate's Office is also available to provide additional information or assistance to parents. The responsibility of the CPS Client Advocate is to handle inquiries, concerns and complaints about CPS. This office explains procedures to parents and other concerned individuals, assesses clients' needs and attempts to resolve problems. The Client Advocate may review case records, and working in coordination with CPS, initiates the problem-solving process. To contact the client advocate call: Phoenix: (602) 542-3581 Statewide toll-free: 1-800-352-8168 The Arizona Ombudsmen-Citizen's Aide is available to handle inquires, concerns and complaints about agency actions, including CPS. This office may be able to help you to resolve your complaint. To contact the ombudsman-citizen's aide call: Phoenix: (602) 277-7292 Statewide toll-free: 1-800-872-2879 Handling Disagreements With CPS All parties are encouraged to discuss issues and resolve complaints with their CPS case manager, and proceed to supervisors or management staff only when resolution has not been reached. When parents disagree with the case manager, they should express their concerns either directly to the case manager, within the staffing or with their lawyer. Parents also may speak with the CPS supervisor. If agreement still cannot be reached, the assistant program manager or the district program manager may assist with problem resolution. The CPS Client Advocate (602-542-3581) may also be of assistance in working with the system. The Child Welfare Mediation Program, operating within the Arizona Attorney General's Office, was created to mediate certain disputes that arise among families, CPS and others concerned with the welfare of children. Mediation of issues will be arranged when a family member or CPS requests it. To contact the mediation program call: Phoenix: (602) 542-4192 Tucson: (520) 628-6504 Flagstaff: (928) 773-0474 To Learn More About The Law Arizona's laws about child protection are contained in the Arizona Revised Statutes, Title 8, Section 2-5. These may be obtained at any county court house building or at the public library. What are the guidelines for the age that a child can be left home alone while we are at work Arizona's statutes (laws) do not designate an age when a child can be left alone. A parent is responsible for the decisions they make about their children being left alone. The law does require however, that the Arizona Department of Economic Security Child Protective Services (CPS) investigate reports of neglect which include failure to provide supervision that places a child at substantial risk of harm. Leaving children alone is included in the category of supervision. CPS has identified situations (that could cause a substantiated risk of harm to children who are alone) that are taken as reports for investigation. For example: - Children under the age of six; - A child of any age who cannot care for his or herself due to a physical, emotional or mental inability; - Children six to nine years of age, for three hours or longer; or it is unknown when the parent will return. CPS understands there are times when school age children may have to be alone for a while. A call about these (latch key) children doesn't automatically mean a CPS report will be taken, however, anyone can call CPS when they know or believe children are alone. When calls come into CPS, specific questions are asked to help determine if there is a problem for the child. These may include: Does the child know how to reach the parent? Does the child know how to get emergency help? Is there a neighbor to go to? Is someone checking in on the child? Sometimes police are called to the home. Before removing children, often police will try to make contact with the parent or other responsible person to come and supervise the children. The police are required to make these reports to CPS. This could result in a CPS Specialist contacting the children and parent about the report and making an assessment of any needed services. Parent's must use good judgment about their children's capabilities, as they are ultimately responsible. We hope this helps in providing an answer to your question. If you need additional information or wish to speak to someone from CPS, call the CPS Hotline at 1-888-767-2445.

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Saturday, June 24, 2017

What Every Parent Should Know Network

Chapter 5 Child Welfare Removal Reunification and Termination

Chapter 5: The Child Welfare System: Removal, Reunification, and Termination
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Tiffany Callo,[208] a wheelchair user with cerebral palsy, dreamed of being a mother. In 1987, Tiffany’s dream came true when she gave birth to her son David. Immediately following David’s delivery, the county’s child welfare agency asserted that Tiffany and her boyfriend, who also had a physical disability, could only take their son home from the hospital if they had a nondisabled caregiver with him at all times. Shortly after David’s birth, Tiffany’s relationship with her boyfriend began to deteriorate, and domestic violence ensued. Unable to deal with the domestic turmoil, David’s live-in caregiver moved out. David was immediately removed to foster care by child welfare workers. Meanwhile, Tiffany learned that she was again pregnant. Her second son, Jesse, was immediately removed to foster care by child welfare workers. Tiffany was granted limited supervised visits with David and Jesse while she fought with the county for custody of her children. Realizing that she would need some assistance to care for her sons, Tiffany requested attendant care to help her with parenting activities, which the county denied.

In June 1988, a custody hearing began. As evidence, the county presented a videotape of Tiffany slowly diapering David during a supervised home visit. The county asserted that the tape demonstrated Tiffany’s inability to care for her child because it documented her slow movements as she changed David’s diaper. This argument ignored Tiffany’s adaptive care for her baby, encouraging him to be patient. Expert testimony supported the mother’s behavior, stating that infants learn to hold still during long diapering sessions when parents support their patience.

Eventually, battling with the child welfare system wore her down. David and Jesse were ultimately adopted by two separate families, despite assurances that they would remain together. Tiffany was granted a supervised annual visit with each child.

Tiffany’s tragic story highlights an all-too-familiar situation for many parents with disabilities. More than two decades since Tiffany lost her children, parents with disabilities still do not fit the norms and expectations of the American nuclear family, and often run afoul of presumptions and myths when they have to deal with the child welfare system. Parents with disabilities and their families are frequently, and often unnecessarily, forced into the system and, once involved, lose their children at disproportionately high rates. This chapter examines the child welfare system’s treatment of parents with disabilities and their families, including state dependency statutes, disparities caused by inadequacies in the ASFA, and the perceived limitations on the application of the ADA. The “unfit parent” standard regularly applied to parents with disabilities is one of the major threats to people with disabilities who choose to parent, and presumptions about “fitness to parent” carve out parents with disabilities as a key population that must prove its ability to parent in American society. Further barriers in representation and access within the child welfare system compound the discriminatory impact on parents with disabilities and the consequent breakup of loving families that can result.
The Child Welfare System: A Brief Overview

The child welfare system “is a group of services designed to promote the well-being of children by ensuring safety, achieving permanency, and strengthening families to care for their children successfully.”[209] The system includes state child welfare agencies, the courts, private child welfare agencies, and other service systems (such as mental health, substance abuse, health care, education, and domestic violence).[210] The goal of the child welfare system is laudable: “To promote the safety, permanency, and well-being of children and families.”[211] The primary responsibility for the child welfare system rests with the states; however, the Federal Government plays a significant role in supporting states in the delivery of services by funding programs and legislative initiatives.[212] The law in most states makes the child welfare system responsible for responding to and following up on allegations concerning the safety of and risk of harm to children in the community.[213]

The ACF at HHS is responsible for the administration and oversight of federal funding to states for child welfare services under Titles IV-B and IV-E of the Social Security Act.[214] Two titles under the Social Security Act provide federal funding targeted specifically at foster care and related child welfare services. Title IV-E provides an open-ended entitlement for foster care maintenance payments to cover a portion of the food, housing, and incidental expenses for all foster children who meet certain federal eligibility criteria.[215] Title IV-E also provides payments on behalf of eligible children with “special needs” who meet other federal eligibility criteria. Special needs are characteristics that can make it more difficult for a child to be adopted and may include disabilities, age, being a member of a sibling group, or being a member of a minority race.[216] Title IV-B provides funding for child welfare services to foster children, as well as children remaining in their homes.[217] Title IV-B also provides funding to states and eligible tribes to support family preservation services, community-based family support services, time-limited reunification services, and adoption promotion and support services.[218]

Families typically become involved with the child welfare system after an allegation of abuse or neglect (also referred to as child maltreatment) is made to child protective services (CPS). CPS is a specialized part of the child welfare system.[219] State laws require CPS agencies to take reports from people who believe a child has been abused or neglected; determine whether abuse or neglect has taken place; ensure that there is a plan in place to keep children safe; and provide services to families to ensure their children’s safety.[220] Anyone who suspects that a child is being abused or neglected can call the local CPS to report the suspicion.[221] Any member of the community, parents, or child victims themselves can initiate an allegation of suspected child abuse or neglect. Professionals who work with children or families—such as doctors, nurses, social workers, teachers, psychologists, and police officers—are “mandated reporters,” legally required to report suspected abuse or neglect.[222]

Once they receive a report of child maltreatment, CPS workers screen the allegation for credibility.[223] A report is screened in when there is sufficient evidence to suggest that an investigation is warranted. Conversely, a report may be rejected for insufficient evidence or if the situation reported does not meet the state’s legal definition of abuse or neglect.[224] These standards are in place to ensure that the state does not run afoul of the 14th Amendment right of parents to be free from state intrusion unless such intrusion is required to protect citizen children.

If CPS deems the allegation credible, workers conduct an investigation to determine whether the child is safe, whether abuse or neglect has occurred, and whether there is a risk of it occurring again.[225] At the end of an investigation, CPS workers typically conclude either that the allegations are substantiated and require further action or unsubstantiated and not worthy of continued investigation or action.[226]

The CPS agency will initiate a juvenile court action if it determines that a dependency proceeding is necessary to keep the child safe.[227] To protect the child, the court can issue temporary orders placing the child in shelter care during the investigation, ordering services, or ordering certain individuals to have no contact with the child. At an adjudicatory hearing, the court hears evidence and decides whether maltreatment occurred and whether the child should be under the continuing jurisdiction of the court. The court then enters a disposition, either at that hearing or at a separate hearing, which may result in the court ordering a parent to comply with services necessary to alleviate the abuse or neglect. Orders can also contain provisions regarding visitation between the parent and the child, agency obligations to provide the parent with services, and services needed by the child. If a child has been abused or neglected, the course of action depends on state policy, the severity of the maltreatment, an assessment of the child’s immediate safety, the risk of continued or future maltreatment, the services available to address the family’s needs, and whether the child was removed from the home and a court action to protect the child was initiated.[228]

For the state to succeed in termination proceedings, clear and convincing evidence must establish that statutory grounds for termination have been met and termination must be in the best interest of the child.[229] Termination of parental rights is devastating and final. Describing the severity and significance of termination of parental rights,

Stephanie Gwillim, in her St. Louis University Public Law Review article, said, “Termination of Parental Rights (TPR) is the death penalty of civil cases. Once a parent’s rights to his or her child are terminated, that parent’s rights to care for, visit, or make decisions for the child are gone forever: the legal parent-child relationship has ended. The parent cannot seek a modification for the permanent custody order after his or her rights have been terminated. The child can immediately be put up for adoption and a biological parent may never see their child again.”[230]
Disability Law and the Child Welfare System

Both the ADA and Section 504 of the Rehabilitation Act (for agencies receiving federal funding) apply to the child welfare system. The ADA was passed with the intent of ensuring “full and equal opportunity” for Americans with disabilities. Undoubtedly, the ADA’s breadth and national mandate of eliminating disability-based discrimination applies to the child welfare system and dependency courts. Indeed, the ADA’s legislative history indicates a clear correlation. For example, during a congressional hearing, Justin Dart, Jr. (referred to as the “father of the ADA” by the disability community) testified, “We have clients whose children have been taken away from them and told to get parent information, but have no place to go because the services are not accessible. What chance do they ever have to get their children back?”[231] Another witness attested, “These discriminatory policies and practices affect people with disabilities in every aspect of their lives… [including] securing custody of their children.”[232] Echoing the need to eliminate discrimination faced by parents with disabilities, another person testified that “being paralyzed has meant far more than being unable to walk—it has meant…being deemed an ‘unfit parent’” in custody proceedings.[233] Thus, “The ADA’s unequivocal rejection of prejudicial stereotypes and inflexible policies that harm people with disabilities could provide an important basis for rethinking child welfare policy toward families in which at least one or more parent has [a disability]”.[234]

Because the child welfare system generally includes state and local agencies, Title II of the ADA applies.[235] Accordingly, the system must comply with Title II’s mandate: “No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”[236]

Pursuant to Title II, child welfare agencies must do the following:

    Provide parents with disabilities an equal opportunity to participate in programs, services, and activities.[237] To implement this mandate, the agencies must make reasonable modifications in policies, practices, or procedures, unless such modifications would fundamentally alter the nature of the service, program, or activity.[238]
    Administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified people with disabilities.[239]
    Not impose or apply eligibility criteria that screen out or tend to screen out any person with a disability from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.[240]
    Furnish auxiliary aids and services when necessary to ensure effective communication, unless an undue burden or fundamental alteration would result.[241]
    Provide, as needed, benefits, services, or advantages beyond those required by the regulation to people with disabilities.[242]
    Not impose surcharges on people with disabilities to cover the costs of measures to ensure nondiscriminatory treatment, such as making modifications required to provide program accessibility or providing qualified interpreters.[243]
    Not deny the benefits of programs, activities, and services to people with disabilities because entities’ facilities are inaccessible. [244]
    Provide services, programs, and activities that, when viewed in their entirety, are readily accessible to and usable by people with disabilities.[245]

Moreover, the child or children at the heart of the TPR proceeding qualify as a party suffering discrimination in accordance with the ADA owing to their familial association. According to the ADA, “A state or local government may not discriminate against individuals or entities because of their known relationship or association with persons who have disabilities.” This prohibition applies to cases where the public entity has knowledge of both the individual’s disability and his or her relationship to another individual or entity.[246] Thus, the ADA protects the children of parents with disabilities involved in TPR proceedings.

The ADA applies to both TPR proceedings and reunification services. The Supreme Court has said, “The fact that the [ADA] can be ‘applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.’”[247] According to Dale Margolin, in her article “No Chance to Prove Themselves: The Rights of Mentally Disabled Parents Under the Americans with Disabilities Act and State Law,” “TPR and the ADA are inherently related: The TPR involves an examination of both a person’s disability and the state’s implementation of services. Furthermore, contrary to the fears of some state courts, allowing a parent to assert a violation of the ADA does not mean that that the child’s rights will be compromised. The child is always the focus of a family court proceeding, even when the court is examining a potential violation of the ADA. In virtually every state, the ‘best interest’ of the child is considered during the TPR. Furthermore, a parent’s evidentiary attack should not be viewed as necessarily contrary to the interests and rights of a child; if a parent has been discriminated against, and the parent-child relationship is severed, in part or in whole, because of this discriminatory treatment, the severance has drastic, and potentially harmful, consequences for the child.”[248]

TPR proceedings are services, programs, and activities covered by the ADA, which requires that there be no discrimination in these proceedings and reasonable modifications in policies, practices, and procedures that affect custody determinations if such modifications are necessary to avoid discrimination on the basis of disability (unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity). In fact, DOJ considers court actions to be “state activity” for purposes of the ADA and thus prohibits discrimination in all state judicial systems.[249] Notably, the Ninth Circuit has applied Title II to parole proceedings, which, according to the court, exist to protect the public, just as TPRs exist to protect children.[250] Reunification and other family preservation services should also be recognized as services, programs, and activities. In fact, federal courts have interpreted Title II broadly and specifically held that it applies to social services.[251] In addition, appropriate reunification and preservation services to parents with disabilities should include relationship-based intervention that facilitates the development and experiences of infants and children. When parents are deprived of these services, their children suffer the same deprivation.

In sum, the child welfare system must comply with the ADA, as well as Section 504 of the Rehabilitation Act as long as it receives any federal funding. Agencies may not discriminate on the basis of disability and must provide reasonable accommodations to appropriately serve parents with disabilities.
Disparate Impact of Child Welfare System on Parents with Disabilities and Their Families

Beginning with the investigation into a report of child maltreatment, bias pervades the child welfare system, and “at any step in the process, societal prejudices, myths, and misconceptions may rear their heads.”[252] Systematic discrimination by state courts, child welfare agencies, and legislatures against parents with disabilities and their families has taken a toll. Statistics indicate that children of parents with disabilities are removed from their parents with alarming frequency.

Although no national study has identified the total number of parents with disabilities who have been involved in the child welfare system, TLG recently completed a research study that identified the number of children in the child welfare system who have caregivers[253] with disabilities.[254] To complete this study, TLG analyzed data from 19 states[255] that met a 10 percent threshold for reporting to the National Child Abuse and Neglect Data System (NCANDS), a federally sponsored national data collection effort created to track the volume and nature of child maltreatment reporting each year in the United States. This study found that 29,986 victims (12.9 percent) had a caregiver with a reported disability: 21,543 victims (10.3 percent) had caregivers with a single disability and 5,443 victims (2.6 percent) had a caregiver with multiple disabilities. The race or ethnicity of children whose caregivers had a disability in the child welfare system of this study was as follows: white, 13,671 (50.7 percent); Latino/Hispanic, 4,922 (18.3 percent); African American, 4,255 (15.8 percent); American Indian/Alaskan Native, 1,833 (6.8 percent); Asian/Pacific Islander, 179 (0.7 percent). The types of disability of caregivers with a single disability included emotional disturbance, 12,427 (6 percent); medical condition, 3,598 (2.2 percent); learning disability, 2,885 (1.9 percent); physical disability, 1,350 (0.8 percent); intellectual disability, 726 (0.5 percent); and visual or hearing disability, 419 (0.2 percent). No data were available on the distribution of disabilities among the 2.6 percent of caregivers with multiple disabilities. This research likely greatly underestimates the number of caregivers with a disability, as parents are not routinely assessed for disability at the beginning of cases; even so, it demonstrates that involvement in the child welfare system of caregivers with disabilities is affecting thousands of children.

Researchers at the Center for Advanced Studies in Child Welfare (CASCW) at the University of Minnesota recently completed a study to understand the prevalence of parental disability among cases of termination of parental rights and to assess disability disproportionality in TPR cases.[256] Using MinnLInK data, which includes Minnesota state administrative data from multiple agencies, cases of TPR were identified in the Social Service Information System (SSIS) database in 2000–2009. Parents whose parental rights were terminated were matched to their educational records in the Minnesota Department of Education database. A parent was determined to have a disability on the basis of his or her record of having a disability in the school system. This study found the risk ratio for TPR for a parent with a disability label in his or her education records to be 3.26. In other words, parents who had a disability label in their school records are more than three times more likely to have TPR than parents without a disability label. The risk ratio for child welfare involvement for a parent with a disability label in his or her educational records is 2.37. In other words, parents who had a disability label are more than twice as likely to have child welfare involvement than their peers without such a label. Emotional or behavioral disorders (60.2 percent) were the most common disability labels for parents with TPR in this study. Parents who were labeled in the special education database with a specific learning disability made up 17.3 percent of the sample; those with a developmental or cognitive disability made up 9.3 percent of the sample; and 13.2 percent were labeled as having other types of disabilities. Although this study focused on a limited set of Minnesota parents with disabilities (parents who were involved in child welfare whose records could be located in the education database), it clearly demonstrates that disproportionality related to parental disability exists in child welfare.

Before these studies, little was known about what portion of child welfare populations comprised families with caregiver disability. Because child welfare agencies did not collect this kind of data, information at this level of detail was not available.[257]

Overall, involvement in the child welfare system results in increased numbers of families torn apart by removal of their children from their homes. Indeed, studies concerning the removal rates for parents with disabilities have long hinted at the significant over-involvement of these families with the child welfare system. Removal rates where parents have a psychiatric disability have been found to be as high as 70 percent to 80 percent;[258] where the parent has an intellectual disability, the rates range from 40 percent to 80 percent.[259] In families where the parental disability is physical, 13 percent have reported pathologically discriminatory treatment in custody cases. The deaf and blind communities also report extremely high rates of child removal and loss of parental rights.[260]

Overrepresentation is not a new phenomenon. A 1991 study examined more than 200 consecutive juvenile court cases in Boston and found that despite greater compliance with court orders, parents with intellectual disabilities had their children removed more often than parents without disabilities.[261] These initial removals often led to TPR. This is especially troublesome, as parents with disabilities who are involved with the child protection system are more likely to be facing allegations of neglect than of abuse or risk of abuse.[262]

Parents of color face even more risk of experiencing discrimination in the child welfare system. As stated in the NCD reportMeeting the Unique Needs of Minorities with Disabilities, “Persons with disabilities who are also members of minorities face double discrimination and a double disadvantage in our society.”[263] The child welfare system is no exception. In 2009—according to Children’s Rights, a national child welfare advocacy organization—more than half of the children entering foster care in the United States were children of color. African American and American Indian children are more likely than other children to be reported, investigated, substantiated, and placed in foster care. Thirty-one percent of the children in foster care are African American, double the percentage of African American children in the national population. Children of color, especially African American children and often American Indian children, are more likely to have longer placements in out-of-home care, are less likely to receive comprehensive services, and are less likely to reunify with their families than white children. The rates of child welfare involvement for African American and American Indian children are more than twice those of white children.[264] While no available data look specifically at the overrepresentation of parents of color with disabilities and their families, presumably the numbers are devastatingly high.

Researchers contend that parents with psychiatric disabilities are overrepresented in the child welfare system because of the common stereotype that people with psychiatric disabilities are dangerous. According to Loran B. Kundra and Leslie B. Alexander in their article “Termination of Parental Rights Proceedings: Legal Considerations and Practical Strategies for Parents with Psychiatric Disabilities and the Practitioners Who Serve Them,” “As a result of this stereotype, it may be the case that judges and lawyers, upon hearing a diagnosis, will presume a level of dangerousness on the part of the parent involved in the termination of parental rights proceedings and will remove their children because of it.”[265] Similarly, Diane T. Marsh found “that children of women with serious mental illness frequently enter the foster care system or, less commonly, are given up for adoption; that a majority of these parents have lost custody of their children; and that custody decisions are typically made with little communication between the mother’s treatment team and child protective services.”[266] In fact, Kundra and Alexander note that a recent study found that parents with psychiatric disabilities were almost three times as likely to have child welfare involvement or child custody loss.[267] The reasons for such targeting include the presence of psychiatric disability as a ground for termination of parental rights in many states, which triggers suspicion about these parents. In addition, many parents with psychiatric disabilities receive state services and are therefore under scrutiny.

Similarly, parents with intellectual disabilities are overrepresented in the child welfare system and, once involved, face high rates of TPR. According to Chris Watkins, in his California Law Review article, “One result of the deinstitutionalization movement has been in a dramatic increase in the number of parents with intellectual or developmental disabilities. Additionally, there has been a corresponding increase in the number of parental rights termination cases involving parents with intellectual or developmental disabilities.”[268] Paul Preston of the National Center for Parents with Disabilities and Their Families contends that this “high rate of removal reflects greater discrimination and lack of appropriate services for parents with intellectual disabilities and their children. In discussing the political and social discrimination faced by parents with intellectual disabilities, experts assert that parents with intellectual disabilities are often held to a higher standard of parenting than non-disabled parents. Negative expectations and outmoded beliefs that children will eventually be maltreated and that parenting deficiencies are irremediable have contributed to children being removed from parents with intellectual disabilities despite lack of evidence for any abuse or neglect by the parent.”[269] Like parents with psychiatric disabilities, parents with intellectual disabilities often have frequent contact with professionals, including those in the government, who often end up being the source of a CPS referral. Parents with intellectual disabilities are also likely to be living in poverty.

Bias pervades the child welfare system at every step. The disparities begin with the initial report of suspected abuse or neglect, usually to the police or CPS.[270] For most parents without disabilities, the initial report often comes anonymously from a neighbor, teacher, or physician.[271] However, because parents with disabilities frequently have regular contact with service providers, such as social workers and therapists, reports of suspected abuse or neglect may come from a state professional with whom the parents have had some previous contact.[272] Anecdotal evidence suggests that CPS is likely to take allegations from state professionals more seriously, regardless of whether they are actually more valid.

Poverty plays a significant role in bringing parents with disabilities into contact with service providers who end up being the source of a CPS referral, and poverty itself is the most consistent characteristic in families in which child neglect is found.[273] Unlike people with the financial resources to buy services privately, people who live in poverty are likely to come to the attention of the state by accessing public assistance.[274] Social scientists have often examined this phenomenon—which is referred to as “overexposure bias” or “visibility bias”—in the case of race.[275] For example, “Because children from African American and Native American families are more likely to be poor, they are more likely to be exposed to mandated reporters as they turn to the public social service system for support in times of need. Problems that other families could keep private become public as a family receives TANF, seeks medical care from a public clinic, or lives in public housing…. Research has shown that exposure bias is evident at each decision point in the child welfare system.”[276] According to Ella Callow, legal program director at the National Center for Parents with Disabilities and Their Families, “While people with disabilities have been neglected by researchers examining this phenomenon, the…factors leading to overexposure bias in the African American and Native American communities are unquestionably present in the disability community. Poverty and reliance on public assistance are, unfortunately, the most common characteristic of the families with disabilities we see who are involved in the child welfare system and [are] quite often the reason they ended up there.”[277]

According to Watkins, “These reports may be tainted by the same prejudices regarding parents with disabilities as are held by many members of society.”[278] Further, once state involvement occurs, “Investigations are likely to be more probing, and investigating professionals are less likely to give these parents any benefit of the doubt.”[279]

In 2003, Phillip Swain and Nadine Cameron of the School of Social Work at the University of Melbourne revealed findings from a study that examined the experiences of parents with disabilities with the court system.[280] Swain and Cameron’s research concluded that parents with disabilities experience prejudicial or discriminatory treatment from CPS and the courts.[281] Commentators have characterized the court’s approach to child protection involving parents with disabilities as one of “risk management.”[282] A false dichotomy is established in which the children’s rights are balanced against the rights of the parents.[283]

For example, Christina,[284] who has significant physical and sensory (vision and hearing) disabilities and is the mother of three children, has been inappropriately referred to CPS on various occasions. In one instance, her daughter’s school reported maltreatment after her daughter injured herself doing summersaults. Although the CPS staff knew that Christina is hard of hearing and requires accessible relay services, they called her without the needed services, with the result that she could not effectively communicate. CPS alleged that she was being uncooperative and continued the investigation. The situation was ultimately resolved in Christina’s favor, but it is doubtful that it would have ever progressed to this level if she did not have a disability. In a similar instance of “risk management,” Cassandra,[285] a wheelchair user and mother of one, was inappropriately referred to CPS by her daughter’s pediatrician. CPS commenced an investigation. Cassandra had difficulty securing an attorney who could effectively represent her—a significant barrier for many parents, discussed later in this chapter. She eventually did find an attorney, and her daughter’s medical records refuted the allegations of neglect.

The bias that permeates the child welfare system has many causes. According to law professor Robert L. Hayman, Jr., “Neither the training nor time constraints permit many social workers to transcend biased perceptions. Moreover, under most schemes, these perceptions are enough to justify state intervention.”[286] Many states’ child welfare statutes “generally require evidence of some connection between a parent’s disability and her ability to parent; however, the level of proof required varies from state to state, and within many states, from case to case.”[287] The consequences of this bias are devastating.

In fact, children have been removed from their families even when the evidence of neglect has been refuted and the court has acknowledged the parent’s adequacy.[288] For example, in In re G.C.P., the Court of Appeals of Missouri upheld a termination order even though it acknowledged that there was no indication of intentional abuse and the alleged neglect was supported only by reference to substandard housekeeping.[289]

Parents with disabilities and their families are frequently, and often unnecessarily, referred to the child welfare system. Connie Conley-Jung and Rhoda Olkin found in a study of blind mothers that “Mothers with disabilities feel vulnerable about their parental rights and the custodial rights of parents with disabilities are frequently questioned solely on the basis of the parents’ disabilities.”[290] In fact, nearly all the parents with whom NCD spoke reported living in constant fear that they would eventually be reported because of their disability. Kathryn,[291] a new mother who is a wheelchair user and little person, told NCD that she is “always worried that some random stranger could call [CPS].” Moreover, because of concern that their daughter’s pediatrician will question their ability to parent, Kathryn and her husband, who has similar disabilities, always take a nondisabled person with them to appointments.

Jessica,[292] a wheelchair user and mother of twins, also lives in constant fear of being unnecessarily referred to the child welfare system. This fear leads her to always call her children’s pediatrician before going to the emergency room. When her children were newborns she was constantly worried about scratching them with her wedding ring when changing their diapers, not because it would cause injury but because someone would see a scratch and call CPS.

Danielle,[293] a deaf mother, feels fortunate that she has not yet been reported to CPS. However, she acknowledges that it could easily happen, which leaves her constantly in fear. Dana has witnessed many instances in which deaf parents have been inappropriately referred to CPS; she told NCD that it is very common for the child welfare system to assert that the parents and child have no language if sign language is the primary language used in the home.

This pervasive fear unquestionably affects parenting. Susan,[294] a disability activist and mother with an immune system disorder, told NCD that she hides her disability when she is relating to people who are involved with her children, because she fears being judged on her ability to care for her children. Lindsay, a mother of two children, articulates the detrimental effects of fear on parenting:

    “Some of my fears now, as my disability status and identity have shifted to include recent psychological and cognitive impairments, are, or at least seem to me, more ‘real.’ I am afraid of disclosing the extent of my brain injury (TBI) and associated multiple cognitive impairment (MCI) to fellow parents, teachers, and service providers, and have even avoided some types of medical services for fear of stigmatizing my kids or giving their father ammunition to win full custody of them. For example, I grapple with intrusive symptoms of posttraumatic stress, as well as suicidal ideation, largely alone, with much minimizing and hiding. I expend a lot of energy trying to cover memory loss. I push myself way too hard, in ways that compromise my health by promoting seizures and other ill effects, so that I can process.”[295]

This same fear leaves many parents afraid to ask for help. Jennifer,[296] a wheelchair user and mother of three children, told NCD that she is always afraid to ask for help as someone may view that as being unable to adequately care for her children and may report her to CPS.

Fear that the state will take their children is common among parents with disabilities. According to Michael Stein, internationally recognized disability expert, “Even with the accomplishment of parental tasks through different techniques, mothers with disabilities fear that mainstream society will remove their children because of prevailing misconceptions. The result is the diminishment of parental joy for otherwise able and loving parents.”[297] Overall, bias pervades the child welfare system and disparately affects parents with disabilities. As Ella Callow said, “This is the only class of children facing loss of family integrity due not to the behavior of their parents, but to their parent’s disability status and how this is perceived and understood by child welfare professionals.”[298]
Discriminatory State Statutes

Child welfare allegations of unfitness are usually grounded in parental disability coupled with other factors, such as poverty, but the system also uses parental disability as a sole validating basis for presumed unfitness. In fact, 22 years since the passage of the ADA, states continue to include disability as grounds for TPR. Such statutes are examples of the oppression ADA proponents sought to eradicate, and they run entirely counter to the letter of the law, which prohibits state and local agencies, such as those in the child welfare system, from categorically discriminating on the basis of disability.[299]

In August 2005, a study revealed that 37 states still include disability as grounds for TPR.[300] Most of these state statutes use outdated and offensive terminology, have imprecise definitions of disability, and emphasize conditions rather than behaviors.[301] Parents with disabilities who are involved with the child protection system are more likely to be facing allegations of neglect than of abuse or risk of abuse.[302]

All the states that include disability in their grounds for termination specify explicit types of disabilities for courts to consider. Currently, 36 states list psychiatric disabilities, 32 list intellectual or developmental disability, 18 list “emotional illness,” and 7 list physical disabilities as grounds for TPR.[303] Tennessee also uses the generic term “mental condition,” which can imply a psychiatric disability or an intellectual or developmental disability.[304] North Carolina is the only state that also specifies organic brain syndrome as an explicit disability to consider in TPR.[305] Eleven states use a common combination of disability types—“emotional illness, mental illness and mental deficiency”—that came directly from the Neglected Children Committee of the National Council of Juvenile Court Judges of 1976.[306] For more information on state statutes and their inclusion of disability as grounds for TPR, see Appendix B.

Law professor Robert L. Hayman, Jr., said, “If the label is not used to help, it is inevitably used to hurt.”[307] According to Elizabeth Lightfoot and Traci LaLiberte, a significant concern about the inclusion of disability in the grounds for TPR is that the mention of parental disability can shift the focus from a parent’s behavior to a parent’s condition or diagnosis.[308] No other parental conditions are listed in state statutes.[309] In fact, it is explicitly laid out in most state statutes that the condition of poverty, for instance, shall not in and of itself be considered grounds for TPR.[310] “However, old presumptions do not die easily, and presumptions of unfitness continue to subtly define the law’s approach to parents [with disabilities].”[311] Thus, as Hayman says, “The formal classification should be abolished as a basis for state interference with the parent-child relationship. The classification has no empirical foundation, and its political roots are not ones to be proud of. The classification results, meanwhile, in a schematic processing of the labeled parent’s claim to family, reducing individualized adjudications to formalities and foregone conclusions. In the end, the scheme makes us all a little less human.”[312] Lightfoot and LaLiberte note, “When a parent’s disability is explicitly included in legislation outlining the grounds for termination of parental rights, the disability can easily become the focus of a child protection case, even though the statutes do not say it can be the sole grounds for termination.”[313]

TPR based solely on parental disability clearly violates the ADA’s prohibition of decisions based on a person’s disability status.[314] The full promise of the ADA will not be achieved until DOJ, in collaboration with HHS as appropriate, actively enforces the ADA in child welfare matters and states stop denying parents with disabilities their fundamental right to create and maintain families.

https://ncd.gov/publications/2012/Sep272012/Ch5

Monday, June 19, 2017

Daniella's Family Needs Help Now

Any donation will be so greatly appreciated. Please help .

https://www.gofundme.com/daniella-pride-memorial-service

RIP Daniella Price

It is with a sad heart that I must say the world lost another beautiful soul. Daniella Price has passed away. It wasn't too long ago that Child Protection Services took her children away from and decided to sever all her rights. Child Protection Services has managed to destroy yet another family and indirectly took another life. I am in a state of shock as we speak and I will go into detail more later and fill all of you in on all the details.

RIP Daniella Price