Caring When a Parent Does Not — the State's Role in Child Welfare
| Publication year | 2010 |
| Pages | 36 |
Legal Article: Caring When a Parent Does Not ...
By Roberta Sue McKenna
The history of child welfare has an inglorious past. Its roots in the United States are traceable to Colonial America, where the child — not the parents — could be deemed the culprit in a family conflict and be punished by death.[1]
Today, societal goals of protecting children can and do merit government intervention into troubled families. In Kansas, the Revised Kansas Code for Care of Children (the Child in Need of Care or CINC code) provides the statutory basis for such intervention. This article provides a road map for practitioners unfamiliar with the CINC code and related adoption and administrative proceedings.[2]
History of Government/Court Intervention
Around the 1900s, courts and legislatures began supporting government action to protect children from abusive parents. In 1882, Justice David J. Brewer, of the Kansas Supreme Court, wrote that a decision on behalf of a child should result in that child, as an adult, looking back to say, "I thank you." Justice Brewer may have been the first to ask, "What will be best for the welfare of the child?" He raised the question in determining the welfare of an orphan, not the rights of the parents.[3]
In 1901, the Kansas Legislature took action to provide care for dependent children[4] and in 1905 passed the Juvenile Court Act modeled on a 1899 Illinois act.[5] The broad scope of the Juvenile Court Act included children who were poor, without proper parental care, idle or immoral, begging on the street while under the age of 10, incorrigible, or in violation of the law, and under 16 years of age. In 1925, the U.S. Supreme Court set limits on the unbridled good intentions of the reformers by providing constitutional protection for parents. Before taking action, the government must overcome the presumptions that (1) a parent is acting in a child's best interest and (2) the parent is best able to know what that child's best interest might be.[6]
The U.S. Supreme Court in Prince v. Massachusetts, 321 U.S. 158 (1944), affirmed the right of the state to intervene in an intact family when necessary to protect children.[7] In 1974, Congress made grant funds available to states for the purpose of protecting children.[8] Federal funds already flowing to families with dependent children began to follow children into foster care by 1980.[9] Both funding streams require the receiving state to demonstrate compliance with federal provisions intended to assure the safety, permanence, and well-being of children.[10] Kansas' statutes facilitate compliance and express legislative efforts to recognize and balance the complex needs of children, families, and communities.[11]
Physical abuse of children was not widely recognized until publication in 1962 of "The Battered Child Syndrome."[12] As the public became aware of the reality of physical abuse, the ability to report concerns became a mandate with the enactment of Child Abuse Prevention and Treatment Act.[13] Rescuing children from suspect parents became acceptable, desirable, and soon gave rise to new concerns.
Congress began to hear complaints about the growing number of children who entered the foster care system only to emerge years later as adults who had lost contact with their families and been provided with no replacement parental resource. Called "foster care drift,"[14] the experiences of these former foster children resulted in passage of the Adoption Assistance and Child Welfare Act of 1980 (AACWA).[15] The AACWA required court oversight to assure permanence and stability for children. In 1997, the Adoption and Safe Families Act (ASFA) amended AACWA.[16]
The amendments were in response to concerns that misplaced efforts to preserve families endangered the safety of children. ASFA continues the ongoing effort to balance children's multiple needs with a focus on safety, permanence, well-being, and, for the system, accountability.
The Kansas Department of Social and Rehabilitation Services (SRS or Secretary) was created in 1973 by consolidating the county departments of social welfare into a single statewide agency to be headed by a secretary appointed by the governor.[17] K.S.A. 39-708c sets out the powers and duties of the Secretary, which include the ability to employ staff or enter into contracts as necessary for the delivery of social services. In 1996, then-Gov. Bill Graves privatized child welfare services. The initiative continues today. Private not-for-profit corporations, licensed by the Kansas Department of Health and Environment (KDHE), provide most child welfare services in Kansas, including Family Preservation.[18] While SRS remains responsible for the initial receipt and investigation of reported incidents, if a child is removed from parental custody the case is referred to a private contractor for all subsequent services.[19]
In 1982, the Kansas Legislature accepted both the need to address "foster care drift" and the need to distinguish between children in need of care and juvenile offenders. The juvenile code was bifurcated into one code for care of children and another for juvenile offenders.[20] The bifurcation recognized that good intentions are no substitute for due process and began the current distinction between children in need of care and juvenile offenders.
Thirteen years after requiring court involvement, Congress made grant funds available to state courts in 1993. The grants are intended to improve court handling of child welfare cases. The grants (there are now three: basic, data, and training) enable state courts to assess and plan for systemic improvement.[21] In order to qualify for grant funds, state courts must develop and implement an improvement plan focused on the safety, permanency, and well being of all children in need of care and juvenile offenders[22] under the jurisdiction of the court.
Safety and Procedures
Law enforcement and SRS share responsibility to receive and investigate allegations of suspected child abuse and neglect.[23] A joint investigation is required when there are indications of serious physical harm to a child or serious deterioration of or sexual abuse of a child such that immediate removal may be necessary to protect the child.[24] Under such circumstances, law enforcement officers are empowered to immediately remove children from the custody of a parent without a court order;[25] SRS has no such power. While the almost complete autonomy of the juvenile court was curtailed with the bifurcation of the code, the court alone determines when a child may be placed in the custody of the Secretary. The court may not act unilaterally but it responds to a petition[26] or an application for an ex parte order of custody.[27] Until a court places a child in the custody of the Secretary, SRS does not have the authority to take physical possession of the child or to determine with whom the child may live.[28] If immediate action is necessary to protect the child, SRS may request law enforcement take the child into protective custody or SRS may request the court issue an ex parte order of protective custody.[29]
SRS may offer services to the family or provide them with information about services available in the community.[30] The family may refuse the services and is not required to follow through on the referrals. SRS must accept the family's decision or seek court intervention. The family will be informed if the agency intends to request court intervention. A record of the encounter is maintained and is available should there be subsequent concerns about the family or the way SRS handled the concern. It is SRS policy to request that the child be removed from parental care only when SRS deems the child to be unsafe in the home.[31] When necessary to protect the child, SRS staff will request law enforcement intervention or assistance from the county or district attorney. The prosecutor, after reviewing information provided by SRS, may file a petition.[32] The petition need not include a request that the child be removed from parental custody but it serves to bring the family under the jurisdiction of the court. The court has the authority to require that the parents, significant others, and the child take certain actions deemed appropriate by the court,[33] and the court may issue an order restraining any perpetrator.[34] Prosecutors may file a petition based on information from SRS, law enforcement, or other sources when that information indicates the child meets the definition of child in need of care.[35]
In addition to determining the safety of a particular child who is the subject of the report, SRS staff must determine the safety of other children under the same care.[36] One reason SRS must determine the safety of such children is to assure that perpetrators of child abuse or neglect do not reside, work or regularly volunteer in a child care facility regulated by the KDHE.[37] While due process is provided for parents involved in CINC cases, due process for an individual identified as responsible for abuse or neglect is provided pursuant to the Kansas Administrative Procedures Act.[38]
If an individual identified as responsible for abuse or neglect is also a parent whose child is alleged to be in need of care, due process is provided in each of the two separate actions. A third action may be initiated if criminal charges are warranted. It is possible, then, for one set of facts to give rise to administrative, civil, and criminal proceedings, each of which having due process opportunities. SRS policy makes an effort to distinguish between the civil CINC and the civil administrative proceedings. A child in need of care action is based on a broad assessment of the family's ability to keep their...
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