The Umbilical Cord that Binds: Cross-Cultural Examination of the Politics of Achieving Effective Permanency and Adoption Policies in the United States and Brazil

• Author: Crystal L. Welch
• Position: Supervising Attorney and Law Instructor with Mississippi College School of Law's Family and Children's Law Center. I would like to express sincere gratitude to my late father, Ivory J. Welch, and my mother, Ida Welch, for my writing inspiration and their contribution to my passion for child advocacy. I would also like to thank my former law...
• Pages: 653-675

THE UMBILICAL CORD THAT BINDS: CROSS-CULTURAL EXAMINATION OF THE POLITICS OF ACHIEVING EFFECTIVE PERMANENCY AND ADOPTION POLICIES IN THE UNITED STATES AND BRAZIL CRYSTAL L. WELCH * I.! INTRODUCTION This Article explores the idea that in child welfare cases where it is unsafe to return the minor child to their parents, the termination of that parents’ parental rights can serve as the catalyst for change needed to achieve permanency for children, youth, and families. The legal process of termination of parental rights permanently severs the parent-child relationship. Upon first impression, the abrogation may appear to be anti-family and against the child’s best interest. However, this severance can function as the umbilical cord that binds the child with permanent family if the effective policies and tools necessary to achieve permanency are in place. Let me explain: the umbilical cord connects a fetus to the biological mother’s placenta, and it transports oxygen, blood, and nutrients essential for healthy development of the fetus. 1 The umbilical cord also helps the fetus expel toxins or waste products. 2 In like manner, a termination of Copyright © 2017, Crystal Welch. * Supervising Attorney and Law Instructor with Mississippi College School of Law’s Family and Children’s Law Center. I would like to express sincere gratitude to my late father, Ivory J. Welch, and my mother, Ida Welch, for my writing inspiration and their contribution to my passion for child advocacy. I would also like to thank my former law school professor and mentor, Professor Angela Mae Kupenda, for her mentorship. My writing is a product of the love and support you have shown me throughout my legal education and career. I extend a special thank you to Professor Shirley Kennedy, Director of Family and Children’s Law Center at Mississippi College School of Law. Your expertise and wisdom is much appreciated. I would like to thank the faculty and staff of Mississippi College School of Law for your support. Finally, I wish to thank Capital University Law School and its Law Review. I am extremely grateful for this opportunity to explore solutions for permanency for children, youth, and families. 1 See, e.g. , Umbilical Cord Appearance and Care , CLEVELAND CLINIC (Mar. 10, 2016), https://my.clevelandclinic.org/health/articles/newborn-umbilical-cord-care [https://perma.cc/G35J-UZ4Y] (“The umbilical cord is the baby’s lifeline to the mother during pregnancy. The cord transports nutrients to the baby . . . [and] is made up of two arteries and one vein.”). 2 Id. (“The cord . . . also carries away the baby’s waste products.”). 654 CAPITAL UNIVERSITY LAW REVIEW [45:653 parental rights (TPR) proceeding can function as the umbilical cord in two very distinct ways: (1) it severs the relationship between the child and the unfit parents and—like the umbilical cord—expels toxins and frees the child from abuse, neglect, abandonment, and any other toxic rights violations; and (2) it helps connect the child to an essential biological family network that may result in kinship care or foster placement with a relative caregiver. To this end, a child who is matched with relatives for successful permanency can maintain the essential family connections assigned at birth, which are vital to healthy growth and development. 3 Generally, youth in foster care who have not found a permanent home by age eighteen “age out” of foster care and are forced to transition from the child welfare system to adulthood without a permanent family. 4 Some states have increased the age from eighteen to either twenty or twenty-one. 5 The older a child is, however, the more difficult it may be to find adequate placement for that child, making adoption more difficult for youth in foster care. 6 Permanency planning and adoption of youth constitute more than an application of legal procedures and rigid laws; they compose a delicate process that requires invariable investigation, audacious advocacy, and an unwavering commitment to the best interests of a minor child if we are to achieve effective permanency goals and prevent the abusive conditions that necessitate them. Because various policies may frustrate the permanency vision, this Article will investigate and explain the policies and procedures that either aid or aggravate the journey to permanency and adoption for youth in the U.S. child welfare system. 7 Furthermore, this Article will conduct an international comparative analysis of permanency and child welfare policies in the United States and Brazil. 8 Brazil was chosen for this analytical comparison because this particular country employs a community outreach model that emphasizes 3 Joan Pennell et al., Expedited Family Group Engagement and Child Permanency , 32 CHILD. & YOUTH SERVICES REV. 1012, 1012 (2010). 4 See Aging Out , CHILD. RTS., http://www.childrensrights.org/newsroom/fact-sheets/aging-out [https://perma.cc/XLL4-HWDR]. 5 Extending Foster Care Beyond 18 , NAT’L CONF. ST. LEGISLATURES (Mar. 11, 2016), http://www.ncsl.org/research/human-services/extending-foster-care-to-18.aspx [https://perma.cc/2YGD-N6UF]. 6 Id. 7 See infra Part III. 8 See infra Part IV. 2017] PERMANENCY AND ADOPTION POLICY 655 strengthening its families as an alternative approach to permanency, foster care, and adoption for youth. 9 This Article explores the child welfare models established by both countries and compares which public policies are more effective for certain communities. 10 This Article will then provide analysis to deepen both a national and a global understanding of the policies necessary for achieving effective permanency and adoption goals for youth in foster care in developing and industrialized countries. II.! BACKGROUND My contributions to the national dialogue on youth aging out of the foster care system were reinforced during my recent international trip to Brazil. As I climbed the steep hills through Rocinha, Brazil’s largest favela, 11 or shantytown, my fifty-year-old Brazilian tour guide, Carlos Antonio de Souza, assured me that he was the perfect escort to introduce me to the life of the children surviving the favela. After his mother’s serious illness and subsequent death, Carlos was placed in foster care and suffered years of abuse and neglect at the hands of his foster parent. Carlos, a native Brazilian who beams with racial and cultural pride in his African ancestry, introduced me to the white Brazilian family who helped take care of him as a child, although in an unofficial capacity as opposed to licensed foster parents. Carlos and the family’s son, who transported me from my hotel to the favela before meeting Carlos, cultivated a lasting friendship and both learned English fluently as a second language. Accordingly, due to their fluency in English, both he and Carlos were able to secure employment in Brazil’s tourism industry. Despite the emphasis on Rio de Janeiro’s notorious cocktail of brutal violence, heinous crime, organized drug trafficking, and extreme poverty, Carlos introduced me to an irrefutable side of the favela that is rarely depicted in the international media. 12 During my time in the favela, I witnessed a very vibrant, thriving social community replete with economic decay and substandard infrastructure, but rich in natural resources and cultural activity. As I observed the thousands of miniature-sized 9 Simone Gonçalves de Assis et al., Nationwide Study on Children and Adolescents in Foster Care in Brazil , 10 PEDIATRICS TODAY 135, 135–37 (2014). 10 See infra Section IV.A. 11 Julia Carneiro, Favela Life: Rio’s City Within a City , BBC (June 9, 2014, 7:34 PM), http://www.bbc.com/news/world-latin-america-27635554#favela_section--guide [http://perma.cc/3ARM-2Q84]. 12 See id. 656 CAPITAL UNIVERSITY LAW REVIEW [45:653 multicolored homes cluttering the hillside of the favela, it was striking to gaze across the highway at the juxtaposed wealthy neighborhoods. Most of the favela residents appeared to have access to running water and electricity. I even saw an abundance of satellite dishes throughout the community, indicating that many residents had access to television. I heard the hypnotic beats of Carioca, 13 Brazilian funk music, blasting from the residents’ loudspeakers. As Carlos led me through the grungy section of the favela to the bright, colorful section fashioned to provide a more appealing aesthetic view for President Barack Obama’s 2011 visit, 14 we stumbled upon a large group of athletic young men from the local community performing capoeira, 15 a captivating Brazilian dance-infused martial art. Carlos and I watched and applauded the young performers, then visited a local street vendor to grab a quick snack—a Guaraná Antarctica (a tasty Brazilian soda flavored with the Amazonian guaraná berry) and empadão de frango (a delicious fresh-baked chicken empanada). We continued through the favela, stopping to greet children and families who knew Carlos, because, not only did he grow up in Rocinha, he still lives in this favela, which he refers to as “my country, my city, my heaven, my hell.” 16 One of the most unforgettable moments during my experience in Rio was the moment two native Brazilian girls approached me, speaking Portuguese, and then broken English once I explained that English is my first language. The young girls asked me to give them money to buy dinner. I looked around to see if I could spot their parents in the crowd because they appeared to be approximately ten or eleven years old. But, I was later informed the two children were homeless orphans and lived on the street where they usually asked tourists and passersby for money to help them purchase food and other necessities. I was appalled the children were living on the street and not placed in the foster care system or in a homeless shelter. From a historical context, children’s rights in Brazil 13 Chris Nickson, The Sound of Brazil’s Funk Carioca , NPR (July 21, 2005, 12:00 AM)...