THE CHILD WELFARE HYPER SURVEILLANCE STATE: REIMAGINING SUPPORTING PARENTS WITH MENTAL ILLNESSES IN 1028 HEARINGS.

• Author: Patterson, Rachel M.

Introduction 546 I. Article 10 Cases from Report to Resolution 551 A. An Introduction to Article 10 Cases 551 i. Article 10 Cases 552 ii. Start of an Article 10 Case 553 B. Trials and 1028 Hearings 557 II. The Americans with Disabilities Act and the Adoption and Safe Families Act 559 A. The ADA Generally 560 B. The ADA Applied to the Child Welfare System 561 C. The Adoption and Safe Families Act of 1997 565 III. Surveillance and the Standard of "Imminent Risk" at 1028 Hearings 568 A. Overview of the Four Layers of Surveillance 569 B. The Standard and Its Application 573 C. Positive Impacts of the Imminent Risk Standard for Parents with Mental Illnesses 576 i. Improved Procedural Time Frame 576 ii. Decreased Effects of Racial Bias 577 D. Negative Impacts of the Imminent Risk Standard for Parents with Mental Illnesses 578 i. Procedurally, the Process Is Too Slow, and Parents Have Only One Opportunity 578 ii. The ASFA Timeline Is Particularly Detrimental for Parents with Mental Illnesses 581 iii. No Protection Against Discrimination: Judges Do Not Recognize the ADA in the Child Welfare Context 582 iv. Caseworker and Service Provider Bias 582 IV. Surveillance Is Not Safety for Families, Especially for Parents with Mental Illnesses 584 A. Recommendations to Better Support Parents with Mental Illnesses in a 1028 Hearing in a Child Welfare System with Hyper Surveillance 584 i. Consider the ADA in 1028 Hearings 586 ii. Mental Illness Trainings for Everyone in Family Court 587 iii. Train Service Providers 588 B. In the Age of Defund ACS: Reimagining Support for Parents with Mental Illnesses in a Child Welfare System with Less Surveillance 589 i. Nothing About Us Without Us 590 ii. Incentivize Reunifying Families, Including Parents with Disabilities 592 Conclusion 593 INTRODUCTION

When my oldest daughter went into foster care five years ago, I was 20 and struggling. I'd signed myself out of foster care two years earlier and had been bouncing between youth shelters and my mom's place.

I went into a shelter after my daughter was born, but a few months later my mother asked me to move in with her.... [My mother] placed me in foster care at 14 because she couldn't handle me acting up, cutting class and staying out late. She eventually got me diagnosed with bipolar disorder.

Still, I was grateful to see how much my mom loved her granddaughter.

Things changed when my daughter was 18 months and I started a new relationship and quickly got pregnant. My mother and I argued; she told me to have an abortion. I packed up my baby and went to my boyfriend's place. Then my mother told CPS that I was with my daughter and without medication while dealing with a crippling illness, and my daughter was taken from me.

I felt betrayed.

Shortly after that, my boyfriend became physically abusive. I lived in terror for my entire pregnancy--I didn't have anywhere else to go and I believed that he loved me.

I became very depressed, stopped going to therapy and often missed visits with my daughter.

I was allowed to take my second daughter home when she was born--with the understanding that I would be living in a shelter and staying away from my boyfriend. I didn't do that, and shortly after I gave birth, my boyfriend and I argued and he cut my ear open with a knife and threatened to kill us all.

The court said I was putting my baby in imminent danger, and she was removed as well.

I felt worthless for losing my children. I was in such a dark place.

When I'd met my first caseworker, I was nervous, but she seemed genuinely concerned.

By the time my second daughter entered foster care, my worker had left the agency. I hoped that her replacement would be as caring, but she talked to me like I was too young and dumb to take care of my kids. She made me feel low for being the victim of domestic violence, but she never referred me to DV counseling or a shelter for battered women.

Months later, I had another worker. She referred me to DV counseling, but she also made me feel ashamed for being stuck in the relationship.

It was hard to make any progress. As time passed the agency tacked on new services, but they were always the same. I completed a parenting class six times and Parenting Journey three times.

But none of those services addressed my deeper issues--instead of bipolar, I had been newly diagnosed with PTSD and anxiety due to being thrown into foster care and the trauma I suffered there.

When I went and found my own trauma-focused therapy, my worker said I wasn't complying because it didn't address bipolar disorder.

I sank deeper into the dark. Some days I just couldn't get out of bed.

Things began looking up a year later when I started dating the man who is now my husband.

When I had my son, we were able to raise him together for two years without incident, and I attended workshops on co-parenting with an abusive ex and on self-care. Yet my daughters remained in foster care.

Then I got pregnant again.

My pregnancy was high-risk.... I was put on bed rest and didn't do services or visit my kids for most of the pregnancy.

I also was smoking weed at times.

When my daughter was born, the hospital found THC in my system and she was taken from me. The next day, a worker went by my place and said that I didn't have enough food and my house was unkempt. She removed my son. (1)

While Ms. Carol's bipolar disorder (2) might not have been the focal point of her engagement with the child welfare system, it is the mental illness she lives with every day. (3) Her bipolar disorder might not have dictated every action she took, but it affected her and the decisions she made. Despite multiple levels of surveillance, including mandated reporters (4) like hospital staff and caseworkers, Ms. Carol still felt unseen and unheard in the child welfare system (5)--a system designed to, among other things, strengthen families. (6)

People with disabilities represent approximately 15% of the population. (7) There are 4.1 million parents with disabilities (8) and approximately 6.6 million children who have parents with disabilities in the United States. (9) This means nearly one in ten children live with a parent who suffers from a mental or physical disability. (10) As of 2012, 19% of children in the foster care system were removed, at least in part, because of parental disability. (11) A study of mothers in Philadelphia with serious mental illnesses receiving Medicaid indicated that they were almost three times as likely as mothers without mental illnesses to have child welfare involvement or child custody loss. (12)

Focusing on New York State, this Note asserts that hyper surveillance disadvantages parents with mental illnesses at every stage of the child welfare system such that they are rarely afforded the opportunity to ask for their children to return to their care while the case is pending and, when they are, the child is rarely returned to their care. This Note further asserts that the child welfare system exposes parents (13) to Four Layers (14) of Surveillance (15) throughout the pendency of their abuse or neglect cases. (16) Layer One is mandatory reporting; Layer Two is the State Central Registry investigation; Layer Three is the report generated in the SCR; and Layer Four is services, court-ordered or otherwise. These four layers highlight the different effects various forms of surveillance have based on who is doing the surveilling and at what point in the child welfare case, or beyond. The child welfare system exposes parents to each layer sequentially as their case progresses. By the time a parent reaches Layer Four and requests through an emergency hearing for her child to return home to her care, she has entered the sphere of hyper surveillance. (17)

Part I of this Note introduces Article 10 cases in the context of the surveillance that parents with mental illnesses (18) experience, and subsequent trials and 1028 hearings. Part II explores the Americans with Disabilities Act and the Adoption and Safe Families Act, two statutes that predominantly guide child welfare agencies. Part III introduces, via this Note's proposed Four Layers of Surveillance system, the surveillance parents experience in the child welfare system. Part III explains the Four Layers of Surveillance and the relevant "Imminent Risk" standard relevant in a 1028 hearing. It also illustrates how the standard both serves and disservices parents with mental illnesses. Part IV asserts that surveillance does not equate to safety for families, especially for parents with mental illnesses. Instead, this Note offers two sets of solutions to better support parents with mental illnesses in the child welfare system. This Part recommends a more just operation of the Four Layers of Surveillance as the system exists today. Part IV further recommends developing a system with less surveillance in the age of defunding the Administration for Children's Services.

1. ARTICLE 10 CASES FROM REPORT TO RESOLUTION

   1. An Introduction to Article 10 Cases

      The child welfare system is a group of services designed to promote children's well-being by ensuring safety, achieving permanency, and strengthening families to successfully care for their children. (19) In New York State, the child welfare system is responsible for receiving and investigating, among other things, reports of possible child abuse and neglect. (20) Article 10 of the Family Court Act (FCA) governs these proceedings and defines "neglect"; (21) the resulting cases are known as "Article 10 cases." (22) This set of laws intends to be rehabilitative instead of punitive, as a family court case aims to promote the best outcome for the families involved. (23)

      i. Article 10 Cases

      The life of an Article 10 case begins with Layer One Surveillance, when a person, often a mandatory reporter, calls the Statewide Central Register of Child Abuse and Maltreatment (SCR). (24) In New York State, the Office of Children and Family Services is the governmental...