Finally Time for Realistic and Determinate Standards in Family Court

• DOI: http://doi.org/10.1111/jfcj.12084
• Date: 01 March 2017
• Author: Josh Gupta‐Kagan
• Published date: 01 March 2017

Finally Time for Realistic and Determinate

Standards in Family Court

By Josh Gupta-Kagan

ABSTRACT

The child protection field has long recognized that legal standards applied by

family courts are both broad and vague—definitions of abuse and neglect encompass

a wide range of behavior, and substantive standards governing disposition hearings,

foster care placements, and permanency hearings provide little guidance. This status

quo empowers child protection agencies—who can take advantage of broad and

vague standards to obtain judicial approval when they want to intervene. As a result,

judicial checks and balances are weaker and reform efforts are more agency-depen-

dent than they ought to be. The weak legal and judicial checks enable the child pro-

tection pendulum to swing widely. Narrower and more precise legal standards can

mitigate those problems. They can also improve current reform efforts by providing

clearer standards for when court intervention is appropriate, and thus help distin-

guish cases which need court intervention from those that do not—a central chal-

lenge of existing reform efforts. This Article outlines several principles for stronger

legal standards. First, standards should balance future risk, with adequate weight

given both to risks of future child maltreatment and to risks of harms imposed by

the court or foster care systems. Second, standards should apply lessons from social

science research—and should evolve in light of future research. Third, they should

follow a firm evidentiary record in the case. These principles should shape standards

for all essential decisions, not only those that are typically litigated at a trial.

Whether a child is removed, what conditions are required for reunification, and

where and with whom a child lives while in foster care, for instance, can all be the

most important questions in any given case, and deserve clearer legal guidance. This

Article will apply these principles to several such decisions. Finally, this Article will

identify two systemic features necessary to make standards more effective—vigorous

advocacy for all parties, and access to appellate courts to decide interlocutory—but

often decisive—issues.

Key words: Child protection legal standards, right to counsel, appeals.

Josh Gupta-Kagan is an Assistant Professor of Law and specializes in child welfare and juvenile jus-

tice. Prior to becoming a professor, he practiced at the Children’s Law Center of Washington, DC, represent-

ing children and family members in District of Columbia Family Court cases, and advocating for legislative

reforms. His scholarship is available at http://ssrn.com/author=996191.

Juvenile and Family Court Journal 68, No. 1

©2017 National Council of Juvenile and Family Court Judges

31

I. INTRODUCTION: WHY FOCUS ON STANDARDS APPLIED

IN FAMILY COURT?

The child protection field has long recognized that legal standards applied by

family courts are both broad and vague. In the mid-1970s, Michael Wald called for

more “realistic and narrower standards” for defining child abuse and neglect cases,

and Robert Mnookin called for more “determinate” standards for when to remove

children and how to handle their cases after removal.

1

Those calls have been enor-

mously influential among academics and child protection reform advocates in the

decades since. They, especially Wald’s proposed reforms, have been less influential

in the development of child protection law. Child protection law has some stan-

dards that courts enforce, of course, but those standards leave tremendous discretion

in child protection agencies. Definitions of neglect remain quite broad. Legislatures

have followed Mnookin’s suggestion that they require courts to hold more frequent

hearings, but have not provided much more guidance as to how courts are to make

essential decisions at those hearings—what efforts a state must make before remov-

ing a child; what nexus must exist between adjudicated neglect and dispositional

orders or case plans; what progress creates a right for parent and child to reunify;

what placements (kinship care vs. non-kinship foster care vs congregate care) should

be available when foster care is necessary; or how to decide when to shift perma-

nency goals away from reunification and, when doing so, what permanency status to

select. This Article argues that it is finally time to adopt narrower definitions of

abuse and neglect and clearer standards to apply through child protection cases, and

that developing such standards can help further reforms both inside and outside of

family courts.

Focusing on court standards now may seem odd. It has been decades since Wald

and Mnookin’s calls, and the child protection legal structure has been largely stable for

decades. Many reform efforts are focused on how to best assist families who do not and

likely will not have open court cases. At this symposium, speakers and panels convinc-

ingly established that the number of children who are truly living at the margins—

growing up in poverty and with parenting that is, at best, minimally adequate—are

tremendous. The vast majority of these children will never enter foster care. In 2014, for

instance, about 3.2 million children were the subject of child abuse and neglect allega-

tions; CPS agencies investigated the vast majority of these allegations and provided an

alternative response to the remainder.

2

CPS agencies substantiated the allegations for less

than one out of every five of these children.

3

CPS agencies only removed children in

1

Michael Wald, State Intervention on Behalf of “Neglected” Children: A Search for Realistic Standards,27

STAN.L.REV. 985 (1975); Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of

Indeterminacy,39L.&C

ONTEMP.PROBS. 226 (1975).

2

U.S. DEP’TOFHEALTH AND HUMAN SERVICES,ADMINISTRATION FOR CHILDREN AND FAMILIES,ADMINIS-

TRATION ON CHILDREN,YOUTH AND FAMILIES,CHILDREN’SBUREAU,CHILD MALTREATMENT 2014 19, http://

www.acf.hhs.gov/sites/default/files/cb/cm2014.pdf (2015).

3

Id. at 21 (estimating 702,000 children deemed victims by CPS agencies).

32 | JUVENILE AND FAMILY COURT JOURNAL