Wednesday, August 27, 2008

FLDS: Raising The Responsibility Bar

There are clearly incidences where children need to be removed from their homes. Some parents are intentionally abusive and some are either mentally incapable of caring for their children or are just plain stupid. Removal though needs to be extremely rare, only when absolutely necessary, and only when removal will clearly produce a better outcome for the child than the status quo.

Current laws around removal of children run something like: “CPS must prove by sufficient evidence to satisfy a person of ordinary prudence and caution that: (1) reasonable efforts have been made to prevent or eliminate the need to remove the child from the child’s home; and (2) allowing the child to remain in the home would be contrary to the child’s welfare.”

Or, to sustain a child's removal from the parents, TDFPS must prove at an adversary hearing that "(1) there was a danger to the physical health or safety of the child which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child; (2) the urgent need for protection required the immediate removal of the child and reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal; and (3) reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home." Tex. Fam. Code sec. 262.201(b).

Or, “a child should be removed if he or she would be in danger with the parent or guardian or if “continuation of the child in the home would be contrary to the child’s welfare.””

These are all good as far as they go but fall short in one extremely critical element - will the removal be better for the child.

All of these existing laws make an assumption on some level that if a child is in any danger in their current home that state care will at least be safer. This is a very wrong assumption.

- The removal act itself will very likely cause mental and emotional harm to the child.

- The removal will, rightly or wrongly, likely cause harm to the child’s relationship to their parents.

- Living in any form of institutional care for any length of time is likely to cause mental and emotional harm to the child.

- An estimated 25% of children in foster care are abused.

All of these harms are also very likely to be life-long. Each mistake in removal will, at the hands of government, cause permanent harm to a child who otherwise would not be harmed.

All state laws then should include an element similar to. “That with the knowledge that the child will endure permanent mental and emotional harm by the removal and institutionalization itself and with the knowledge that the child may likely be physically and emotionally abused in institutional and foster care, that remaining in the home is clearly and convincingly a greater danger to the child than than all of those dangers presented by removal.”

This raises the bar to a more appropriate level and makes it more clear to all concerned the gravity of the decision being made.

Edit: Just after posting this I was told of this excellent post and comments on IPercieve

No comments: