Views from the Bench
| Publication year | 1997 |
| Pages | 30 |
The Child Welfare Reform Act of 1994 Is the Cure Worse than the Problem?
Arthur G. Christean, Judge
The 1994 Utah Child Welfare Reform Act was a massive piece of legislation. The enrolled copy of H.B. 265, 1994 General Session, totaled 180 pages, which amended existing and enacted new sections primarily in the human services code and the judicial code. Before its enactment, all of Chapter 3a of Title 78 of the judicial code, entitled "Juvenile Courts", consisted of some 19 pages of printed text, exclusive of annotations. The enactment of this legislation (hereafter referred to as "the 1994 Act") expanded this Chapter to 28 pages. Two years before the 1994 Act, a precursor statute was enacted entitled the "Permanent Termination of Parental Rights Act". Before this 1992 legislation, permanent termination proceedings were governed by a single section in the judicial code occupying less than one-half page of printed text. As a result of the 1994 Act, which incorporated and supplemented the 1992 legislation, the portion of the judicial code dealing with permanent termination was expanded to 14 sections occupying three full pages of printed text. Further, prior to the 1994 Act, all statutory provisions in the judicial code governing the conduct of shelter hearings were combined with detention hearings within a single section, and consisted of brief references in two paragraphs. After the 1994 Act, as amended to date, statutory language in the judicial code I devoted exclusively to this emergency type proceeding are contained in three sections which take up over two full pages of densely worded text.
Even with its corrective amendments " thus far, the Utah Child Welfare Reform Act remains a singularly ill-conceived and poorly drafted piece of legislation with some distinctly dangerous implications. No doubt this kind of statement will strike many as an unduly harsh indictment of this legislation, which was heavily promoted as a major advance in meeting the needs of Utah children. It was praised in the media and social welfare circles alike as a long overdue improvement which would place Utah in the forefront as a national leader in the child welfare field. The reasons for such a contrary assessment of its merits are described in this article. With some notable exceptions, the 1997 amendments enacted by H.B. 307 have not cured but have compounded the difficulties with this legislation by reinforcing and even extending its philosophy.
The ostensible purposes of the 1994 Act to protect children and provide them with "permanency" are laudable. Few can argue with such aims. In fact, it was widely represented to the public that this legislation was necessary to achieve them and to correct the defects in the prior law which inhibited their accomplishment. Further, it is not the good intentions of the promoters of the Act nor its use to compromise and settle a difficult lawsuit pending at the time of its enactment which constitute the source of the difficulties it presents. Indeed, the concern is not with the need to protect children at all, which every civilized society recognizes as does our own. Moreover, there is no question about the political reality that the wisdom and validity of the social policy this legislation seems to represent, namely, that long term stability in family relationships and overall happiness for children can be achieved through more prompt and extensive government intervention, must be left to the people of the state and their elected representatives to decide.
Rather, the major concern which this article seeks to address is what seems to be the real objectives of this legislation, whether fully intended or not, and the over-reliance on the legal system and the misuse of government power it invites. There is of course no way to protect all children from harm without changing the very fabric of our entire society and the constitutional structure of government itself. However, because of the historic regard the State of Utah has always had for the interest and welfare of children, it is not surprising that noteworthy individuals or groups who represent themselves as child advocates, whose sole motivation is claimed to be the protection and welfare of children, are given considerable deference in their efforts to protect if not all children, as many as possible. Likewise, the legislative proposals they advance are often accepted as beneficial and appropriate without a great deal of careful scrutiny. Few are willing to risk the public opprobrium of being cast on the wrong side of any child welfare debate. Child advocacy has become big business. Thus it is that the people of the state may well endorse and put into law something which may in reality be quite different from what they thought it was and from what it was represented to be. Also, the problems with such well intentioned legislation, legal as well as practical, are not always immediately apparent. It often takes a few years of actual practice and application in individual cases for them to emerge. Such is the situation with Utah's Child Welfare Reform Act of 1994, as amended to date.
The serious problems this legislation presents can for convenience of analysis be grouped under four main headings, each of which will be discussed in turn. Due to ethical as well as statutory constraints, individual cases cannot be identified or discussed.
1. The serious misunderstanding and misuse of the judicial process.
While the 1994 Act pays lip service throughout to preserving family ties, its design and policy pronouncements indicate otherwise. An objective analysis of the content of the legislation, and the manner in which it has been implemented to date, indicates clearly that its basic aims are not to preserve family ties, but rather to sever them as quickly as possible in order to protect children from the risk of neglect or abuse, and to redistribute those children over whom the state can exercise authority from less deserving biological parents to more deserving adoptive parents. Indeed, the Act's dominant emphasis on speed and certainty in achieving these results, above all other considerations, is readily apparent. Further, the Act's design and language also seems to serve as a useful way for the state to officially support worthy foster parents by expediting the adoption process for children placed with them.[1]
In order to accomplish these broad social purposes on behalf of children, the judiciary is enlisted as a necessary if not willing accomplice. There are numerous examples of a misunderstanding of the proper function of the judiciary throughout the legislation. A general one which strikes the observer at the outset however is the extensive commingling of executive and judicial functions, including several instances of placement of code sections pertaining exclusively to executive responsibilities in the judicial code and conversely judicial responsibilities in the human services code. A specific example of the former is the placement in the judicial code, within the legislation as originally enacted, of sections 78-3a-301 to 78-3a-304 inclusive, which pertain wholly and exclusively to executive branch actions and duties. Section 78-3a-302 through 304 have since been relocated into the human services code, but 78-3a-301, an important section regarding the authority of caseworkers and peace officers to remove children from their parents without warrant, persons over whom the court exercises no supervisory authority, remains within the judicial code.[2] Doing so appears to serve no legitimate purpose other than to give the actions undertaken pursuant to this section the appearance of greater legal legitimacy than they would otherwise enjoy if placed in the human services code. Yet the grounds recited in this section are duplicated virtually word for word in section 78-3a-306, the shelter hearing section which governs judicial review of the state removal action.[3]
However, of much greater importance than the matter of poor drafting or inappropriate placement of code sections is the implicit acceptance throughout this legislation of the role of the juvenile court as an instrument of social policy in general, and the enforcement arm of the Division of Child and Family Services in particular, rather than as an independent tribunal to do justice by deciding each case on its merits on the strength of the evidence presented. Whatever misuse of the court of this nature the 1994 Act may invite seems to be in support of goals deemed more important or superior to constitutional notions regarding separation of powers, namely achieving "permanency" for as many children as possible and as quickly as possible, which basically means "freeing them for adoption" in the words of 62A-4a-205.6(l). Courts of course do not "free" children from their parents as a matter of judicial favor. Yet, with language of this sort highlighting the 1994 Act, it is not surprising that the removal of parental rights can come to be viewed as something more in the nature of an annoying legal obstacle, than the important constitutional requirement that it is.
To elaborate further in this regard, numerous policy statements are to be found throughout the 1994 Act which are m ore in the nature of extended sociological statements on the damage to children and society caused by unfit or neglectful parents, and why government has an obligation to control them or eliminate their parental rights, than statutory language with operative legal effect.[4] However, other provisions in the Act set forth specific requirements to be complied with by the court, which by their nature and attempt to anticipate all circumstances, show clear evidence of a design to structure and control the outcome of the judicial process. These include several sections which provide legislative direction to the...
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