Who speaks for the child? - response to Viewpoint article - Special Report: Protecting Children's Rights

Children Today, May-June, 1989 by Tom McDonald

Who Speaks For The Child?

Poor Johnny! He has endured more sorrow and suffering in his five short years than most people will see in an entire lifetime. Unfortunately, his is not an isolated incident. Thousands of children each year suffer the trauma of re-abuse, either upon reunification with their families or during the course of their stay in foster care. Karen Dorros and Patricia Dorsey's frustration with the legal system is certainly understandable. As a judge who works with abused and neglected children each day, it is a feeling I deeply share.

The child's safety must ALWAYS come first. Certainly, we all agree that parental rights are extremely important. Any interference with the family relationship must be cautiously undertaken. Nothing, however, supersedes the child's safety in importance. Although parental rights are sacrosanct, so is the child's right to a safe, loving and permanent home. Her right to a safe environment must always be considered in conjunction with her right to a permanent one.

Anytime a child is taken from her family, regardless of the nature or extent of the abuse, she is doubly traumatized. She must first suffer the physical pain of the abuse, then endure the emotional pain of separation from siblings, friends and familiar surroundings. Recognizing this, we need to reconsider our initial approach to this dilemma and ask why the innocent child victim is rather than removing children.

Whether the child is allowed to remain in the family setting or is removed from her home and then reunited, her safety must always remain the predominant concern. In almost always the one removed from the home. The proper focus should be on removing the risks to children either situation, a number of safeguards should be in place to aid in the prevention of re-abuse, including meaningful judicial review, intensive family crisis intervention, and use of a Court Appointed Special Advocate (CASA). In addition, the caseloads of social workers should be reduced, and their salary increased, and they need to have access to both "hard" and "soft" services.

The very basis of permanency planning is the belief that every child has the right to a permanent, loving family. Judicial review is the most effective element in achieving this goal, as well as in ensuring the child's protection.

We are all too familiar with cases in which children in out-of-home placements become invisible. They are shifted from one foster home to another, often spending years in the custody of the state. When I first took the bench, I had one young boy who had been in 21 different placements in less than three years. How can any type of bonding take place when a child is allowed to remain in one setting for an average of only 2 1/2 months at a time? How can a child develop any sense of self-worth, any normal means of self-expression?

Meaningful judicial review has consistently proven successful in breaking this cycle while providing for the safety of the children. However, several criteria are necessary to ensure this success.

Obviously, it must be judicial review. The judiciary cannot abdicate its responsibility. In a number of jurisdictions, the court has allowed the state child welfare agency to conduct this review, rationalizing that the docket was already too crowded. I can assure you this is just a rationalization. I normally handle a fairly heavy docket of 35 to 40 abuse and neglect cases a day. Several additional reviews have certainly not proven to be unduly burdensome. In addition, the futility of having the agency review itself should be obvious.

It should be emphasized that if judicial review is to be successful, it must also be meaningful. Initially, this means frequent. Family members are much more likely to follow the court's orders and cooperate with the social worker if they know they have to reappear before the judge.

Meaningful review also requires that it take place on the record and that all interested parties are present: the child, parent, foster parents, counsel, social service provider and the CASA volunteer. Such a review is the only way the judge can determine firsthand how the situation is progressing. It is the only opportunity she has to speak with the family and they with her. The ability to personally survey the situation is critical if the court is going to make any intelligent, informed decision. It is an essential element in the prevention of re-abuse.

Obviously, these reviews cannot be continued forever. The family will hopefully return to some semblance of normalcy after a reasonable period of court intervention. In all cases, however, the reviews should continue for as long as necessary to ensure the safety of the child.

The question of whether a child must be removed from his or her home is the most difficult decision any judge is called upon to make. Possibilities of re-abuse, or the emotional trauma of separation, are at the forefront of the judge's deliberations.

Too often, children are removed by default. The crucial services necessary to keep frantic, desperate families together are sorely lacking. Those services vary from situation to situation. Sometimes they are as simple as helping the family obtain a medical card or providing assistance in paying next month's rent.