A new proposal for custody in dependency cases

A new proposal for custody in dependency cases

I have a suggestion that I think goes to the heart of the problem. Specifically, I believe the state should not have custody of children. And I believe their having custody is what grants them the virtually unfettered power they hold over parents. After explaining my solution, I have attached part of a brief I wrote regarding what I believe is the proper place of CPS under current law. Feel free to forward my ideas to others who may be interested in the problems surrounding CPS cases.

Gary Preble
http://preblelaw.com

A new proposal for custody in dependency cases: The essence of this proposal is that the protection of children and the correcting of parental deficiencies--both legitimate functions of what is called the "police power" of the state--does not necessarily include the state having custody of the children. Moreover, people are presumed to be fit parents/caretakers.

The CPS picks up a child, thus fulfilling its protective function.
The child(ren) is/are immediately placed with relatives chosen by the parents (absent good cause to not place with that relative).
At the shelter care, if the child(ren) is/are not returned home, a temporary custody order is entered under a third-party custody petition pursuant to chapter 26.10 RCW, at which point the care, custody and control of the child is completely removed from the CPS. All visitation, health care, etc is the responsibility of the relative.
- If an appropriate relative (acceptable to the parent) is not available, a family friend may also be chosen by the parent.
- If no relative or friend is available, the children are placed in foster care (which has been placed in a new agency, not in the control of the CPS/DSHS)
- Regardless of who has the child(ren), CPS has no access to or control over them. Any corrective measures are the responsibility of the custodian
If the state wins at the fact-finding, a permanent custody is ordered in favor of the custodian. The parents then work on the identified parental deficiencies, assisted by the DSHS, which fulfills its corrective function.
Success in correcting parental deficiencies will constitute a substantial change of circumstances sufficient to allow a return of custody to the parent under the custody action.
Failure in correcting the deficiencies may allow the custodian to take guardianship or adopt, depending on the circumstances.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

POLICY CONSIDERATIONS UNDERLYING DEPENDENCY AND TERMINATION.

        It appears to be an unwritten assumption that the purpose of a termination case is to destroy not only a child's bonds with one or both parents, RCW 13.34.200(1), but with all her other relatives as well, even those within the close consanguinity listed in RCW 74.15.020(2)(a). This misguided approach is in contrast to the more limited goals of the dependency and termination statutes. It is thus critical that the purposes of a dependency and/or termination action be continually before the court and the parties. Though the present case is a termination, one must look at the purposes and limitations of a dependency, which is the foundation of a termination.

         A. What a dependency is.

         A dependency is the "helping" intervention of the government, Krause v. Catholic Community Services, 47 Wn.App. 734, 744, 737 P.2d 280 (1987), when "a child's right to conditions of basic nurture, health, or safety is jeopardized." RCW 13.34.020 (emphasis added).

         B. What a dependency is not.

     Dependency is not meant to provide optimal parents for a child. Dependency is not meant to provide average parents to a child. Rather, the state is justified in intervening in a family's life only when and so long as the care provided by the family unit falls below basic nurture, basic health or basic safety. (See also, RCW 26.44.010, using the term "minimum".) Dependency must be dismissed when parental deficiencies--which brought their care of the child below the line of basic/minimum nurture, health or safety--are alleviated, mitigated or cured. In re Churape, 43 Wn.App. 634, 638, 719 P.2d 127 (1986); RCW 13.34.130(7)(a).

    A dependency is not an opportunity for a caseworker or judge to impose their concept of proper parenting on a family. See, Custody of Smith, 137 Wn.2d 1, 18, 20-1, 969 P.2d 21 (1998) (not state's province to make significant decisions regarding children "merely because it could make a 'better' decision"); Custody of Anderson, 77 Wn. App. 261, 890 P.2d 525, 527 (1995). A dependency is not a means to redistribute attractive children through termination and adoption. A dependency is not meant to supplant other relatives when they are capable of providing protection for the children. See, RCW 26.10.030(1); Custody of Stell, 56 Wn.App. 356, 365, 783 P.2d 615 (1989) (nonparent may obtain custody by establishing parental unfitness).

    Nor is dependency a procedure where the state has "rights" for itself. Rather, the child has rights; the state has authority to intervene when a child is receiving sub-basic care. RCW 13.34.020.

         C. Termination is necessary when the parent fails to provide basic care.

    Termination is only necessary when, notwithstanding the efforts of the state to assist, the parent is unable to rise to the level of providing the child basic/minimum nurture, health or safety, such that it is in the best interests of the child to terminate its relationship with its parent(s). Churape, 43 Wn.App. at 639. Termination should not be looked on as a positive thing, but rather an unwanted, but unavoidable, circumstance that is necessary1 for protecting the child.

         D. The need to terminate parental rights must be distinguished from placement of the child following termination.

          It is critical not to confuse the government's underlying obligation to ensure safety with the need for a caretaker to provide that safety. In ensuring that safety, the government, unless no other family members exist, should in fact not be the caregiver.2 There is nothing inherent in the government's obligation to protect that requires it to subsequently place the child with a non-familymember. Any other contention is not only contrary to Washington law, it is also antagonistic to fundamental principles of liberty upon which our society is founded.3 The court made that distinction in State ex rel Michelson v. Superior Court, 41 Wn.2d 718, 721, 251 P.2d
603 (1952)(termination);4 and with the child as its top priority, said:

"The law does not fly in the face of nature, but rather seeks to act in harmony with it, and to that end encourages the formation and continuance of those ties which, by the inscrutable providence of God, bind man to his own flesh." [Citations omitted].

The key to this and similar cases is to understand several things about the government. First, it is not the proper goal of government to be a parent or have children. Second, one must recognize the distinction between the government's obligation to protect children, if necessary, and its related obligation to provide children, if necessary, a permanent home. The two obligations are not identical, and they do not necessarily coexist. The obligation to protect results in the dependency and termination process. Once parental rights are terminated, there arise new circumstances--the need to ensure the child who now has no parents receives a safe, stable and permanent home.

1. The government role in dependency.

In the dependency action, the government normally takes (or should take) a "backup" role to the parents in the protection of the child. By this is meant that the government's real interest is not in having custody of the child but in assisting the parents to rise above the line of basic care and resume custody. When successful, the department's "backup" role as protector of the child will decrease until it is no longer necessary. At some point, the children will return home, with the dependency ultimately dismissed.

If, however, the government is unsuccessful in its "backup" role of assisting the parents (because the parents are incapable of correcting the deficiencies that led to the dependency), the government's role changes character. Rather than seeking to assist, the government takes on an adversarial role and attempts to terminate parental rights.

2. Government role after termination.

    After termination, the government should also take a "backup" or secondary role in placement of the child. If there are appropriate relatives available, the government should not "fly in the face of nature," Michelson, supra, but should assist the grandparents, or any other appropriate relatives, in exercising their "preferential status" for obtaining custody/adoption of the child. In re Schulz, 718 Wn.App. 134, 144, 561 P.2d 1120 (1977)

    The government's goal should be to assist the relative, again in a "backup" role. The department will be successful when transition is made to the relative's home and care. The underlying obligation to ensure the child receives a safe, stable and permanent home should be secondary to the child's right to continuity of family relationships; and the government's role should only ripen into a primary obligation, contrary to the family unit and other relatives, when continuity of such relationships is harmful to the child.

       In each step of involvement in a child's life, the government should thus take a secondary role whenever possible, preferring to have problems resolved by the family unit. This approach means that government should use the least restrictive means when dealing with the problems surrounding dependencies and terminations.

1 Washington also recognizes non-governmental solutions for the protection of children from unfit parents. Marriage of Perry, 31 Wn.App. 604, 608, 644 P.2d 142 (1982)(parent protected child by modifying custody under Chapter 26.09 RCW); Adoption of Kurth, 16 Wn.App. 579, 557 P.2d 349 (1976) (grandparents adopted grandson under former 26.32 RCW without father's consent after father murdered mother); Custody of Stell, supra, (nonparent may show parental unfitness under chapter 26.10 RCW). Indeed, the grandmother's custody of the siblings is evidence the government had no need to step in to protect the siblings by means of a
dependency.

2 But having become involved in a child's life, the government should not remove itself from the process until the proper caregiver is in place.

3 "A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government." Const. art. 1, § 31. A "child is not the mere creature of the State." Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).

4. Unfortunately, Michelson was overruled by the case of In re the Adoption of B.T., 150 Wash.2d 409, 78 P.3d 634 (2003). Unless the legislature changes the law, there is no longer preference for grandparents after termination of parental rights to adopt their grandchildren.