This month, California’s Supreme Court and the state Legislature took up the same weighty question: Should parents be allowed more time to reunify with their children in foster care when social service agencies have not provided the court-ordered services they promised?
The state’s highest court settled the matter for now. In an April 6 ruling involving a dad and his teenage daughter, justices agreed with lower courts that in such instances a parent is not automatically entitled to more time at the end of their dependency case, when termination of parental rights looms.
State lawmakers could decide otherwise. A bill that received unanimous approval in the Assembly’s Judiciary Committee Tuesday would grant parents six more months to participate in counseling, domestic violence programs and substance abuse treatment before courts can consider permanently severing them from their children.
“These are the tools that we need that we didn’t have before to become strong parents to our children,” Jody Rogers said at a legislative hearing this week. “If reasonable services are not offered, then nothing changes,” said Rogers, a Sonoma County mother who once had her three children taken into foster care.
Without the court-ordered programs she received, Rogers said she would likely still be homeless, addicted to drugs and living in an abusive relationship, separated from her children.
Under Assembly Bill 937, parents would automatically receive six extra months of reunification time if a judge determines that a child welfare agency failed to deliver services and facilitate family visits — and if returning to the parent’s custody remains in the child’s best interest.
“I’ve seen families forever separated because of insufficient visitation or parents who were referred to services hundreds of miles from where they lived,” attorney Julia Hanagan testified at Tuesday’s hearing.
Hanagan — policy director for Dependency Legal Services, which represents parents in six Northern California counties — said AB 937 would “ensure that there are consequences to the agency’s failure,” while also ensuring that families with “the capacity to reunite will be given a fair opportunity to do so.”
The history of timelines
Under the 1980 Adoption Assistance and Child Welfare Act, child welfare agencies must make “reasonable efforts” to prevent the use of foster care, and to ensure children can return to their parents whenever possible. Amid a sharp rise in foster care numbers, the federal law encouraged family preservation services and greater oversight of the nation’s child welfare system.
In 1997, federal lawmakers tackled another problem: too many children languishing in foster care for too long. The Adoption and Safe Families Act required courts to begin planning for adoption or reunification within the first year of a case. Under the law, legal proceedings that could lead to the termination of parental rights must begin once a child has spent 15 of the previous 22 months in foster care.
“I’ve seen families forever separated because of insufficient visitation or parents who were referred to services hundreds of miles from where they lived.”— attorney Julia Hanagan
The federal law allows exemptions to that timeline in three circumstances: if a child welfare agency has failed to provide promised reunification services, if the child is living with a family member, or if a dependency court determines there is a “compelling reason” why maintaining parental rights is in the child’s best interests.
And under California law, parents who are in prison, immigration detention, or undergoing substance abuse treatment can already receive an additional six months if the court determines that reasonable services were not delivered.
But some dependency attorneys say that in the state’s overloaded dependency courts, pleas for more time at the end of a case are not always granted by dependency court judges, unless they are considered “exceptional situations.”
What’s more, the definition of “reasonable” is not always clear, and can vary according to location, an individual judge, or over time, legal observers say. Dependency court attorney Brian Okamoto, who represents parents in Orange County and argued the California Supreme Court case, said parents face a power imbalance when they challenge social workers in court.
“We essentially have a stopwatch on families,” Okamoto said. “It’s almost like there’s this magical line of 18 months that if you cross, it automatically means significant detriment to a child.” Yet “if you talk to parents and their children,” Okamoto added, “there is no such magical line. They want to reunify and go back home together.”
More time in California?
The pending legislation in California would automatically extend timelines if parents didn’t receive services owed them. Introduced by Democratic Assembly member Tina McKinnor of Los Angeles, AB 937 is supported by numerous child welfare advocacy organizations. The bill is co-sponsored by the Children’s Law Center of California — the largest firm representing children in the state’s dependency courts — as well as Dependency Legal Services and Root & Rebound, a nonprofit that assists formerly incarcerated parents.
The legislation has no current opposition, though last week’s state Supreme Court case resulted in a different conclusion on the same question.
In Michael G. vs. Orange County Superior Court, the state’s highest court ruled that dependency court judges should not automatically extend a court-ordered deadline, even when social workers failed to connect parents to services. Instead, the opinion noted, juvenile court judges and bench officers should make individual determinations about whether additional time is warranted, granting appeals only for the “exceptional situations.”
The case originated in 2019 with the removal of a 16-year-old from her father’s care due to his escalating mental health issues. Court documents describe Michael G. as hearing voices and describing persecution by demons and the government. Sometimes he punched walls in their home.
In the first year of his case, the father did not comply with a court-ordered plan which included therapy and a mental health evaluation, though he later participated in some counseling and a parenting class.
Both an appellate court and the state Supreme Court agreed that Orange County’s child welfare agency failed the girl’s father in the case. Specifically, they noted that social workers failed to obtain or review his psychological evaluation in a timely manner, thereby preventing him from receiving mental health services that could have demonstrated his progress toward reunification.
“By not providing reasonable services between the 12- and 18-month hearings, the Agency failed to uphold its end of the bargain,” the Supreme Court opinion reads.
But justices also noted there is a “delicate balance between families’ interests in reunifying and children’s interests in avoiding protracted uncertainty about who will care for them.” And dependency courts should not ignore a child’s need for a “timely, safe, and stable placement,” they ruled.
That balance is a challenge in courtrooms across the nation, with many legal experts concerned about the harm to children when their cases drag on.
“We essentially have a stopwatch on families.”— Dependency court attorney Brian Okamoto
“Extending reunification services and prolonging foster care for more than 18 months can result in poor outcomes for foster youth,” states an amicus brief in the Michael G. case filed by the California State Association of Counties.
When the clock is cruel
Nonetheless, since federal timelines were created decades ago, many in the child welfare field are rethinking that logic, and viewing the timeline clock as unnecessarily cruel. There is growing concern about the trauma and harm caused by family separation, as well as the poor outcomes of kids raised in government care. There is also more attention paid to endemic racism in a system that removes a disproportionate number of Black and Indigenous children from their parents.
Even top government officials have called for change. In 2018, former high-ranking federal child welfare officials Jerry Milner and David Kelly called on child welfare agencies and family attorneys to fight harder to ensure that parents receive access to needed services. More emphasis on “reasonable efforts” arguments in court can “dramatically reduce unnecessary family separation, decrease child and parent trauma, promote child and parent well-being, and expedite permanency,” the two wrote in an American Bar Association opinion piece.
Attorneys representing foster youth in eight California counties presented a similar argument in the Michael G. case, stating that children, and not just parents, can be negatively impacted by rigid timelines.
“The trauma of not reunifying with a parent causes lifelong injury that should not be unnecessarily inflicted upon children in the dependency system simply because a timeline has run,” the court document states, “especially when their family was not given a proper chance to succeed at reunification.