Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Monday, March 28, 2011

Gupta-Kagan: "Filling the Due Process Donut Hole: Abuse and Neglect Cases between Disposition and Permanency"

Josh Gupta-Kagan has posted "Filling the Due Process Donut Hole: Abuse and Neglect Cases between Disposition and Permanency" (10 Conn. Pub. Int. L. J. 1 (2011)) on SSRN.  Here is the abstract:

A state child protection agency removes a child from his mother and convinces a family court judge to rule that the child’s mother neglected him and to place the child in foster care. The judge orders the agency to work with the mother to remedy the conditions that led her to neglect him with the plan of reunifying the child with her. One year later the family returns to court. The social worker files a report asserting that the mother has not cooperated with the agency’s efforts to help her and remains incapable of taking care of the child. The mother says that she now can take care of her child, but the social worker has never liked her and has not given her a fair chance, nor has the worker given her credit for the progress she has made. She says she tried to work with the social worker, but the worker only referred her to other agencies that did not provide useful help.

How does the family court decide what happens next? A series of factual disputes exist that are distinct from the ruling that the court has already issued regarding the mother’s past neglectful conduct. These factual disputes are tied to legal questions - what will the child's "permanency plan" be, that is, will the judge order the agency to continue efforts to reunify the child with his mother or will the judge order the agency to work to have the child adopted by another family. This case is thus ripe for time tested adversarial adjudication through an evidentiary hearing. Yet in most states do not require permanency hearings to be based on evidence, and appeals of permanency hearing decisions are not permitted or do not occur. Federal law - which shapes much state law practice - provides vague and insufficient guidance to courts which must make decisions in thousands of cases like this.

This article argues that this due process donut hole -- the absence of procedural safeguards at child abuse and neglect permanency hearings, the hearings held regularly between an initial abuse or neglect adjudication and disposition and a later termination of parental rights or other permanency trial - must be filled. Constitutionally, the rights at stake - those of parents and children to maintain family integrity - are fundamental, the risk of error from sloppy procedures great, and the state interest in avoiding stricter procedures small. From a policy perspective, ensuring better permanency hearing decision-making will help avoid children drifting through foster care for years. Providing a right to appeal permanency hearing decisions will both improve trial court decision-making and help clarify difficult questions of law that will not be resolved through other appeals. Alternative methods of providing due process checks - especially early termination of parental rights trials - would create significant other problems, including the unnecessary termination of parental rights for tens of thousands of children. State courts and state and federal policy makers should work to ensure permanency hearing decisions are made via evidentiary hearings and that parties may appeal adverse rulings.


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