Before getting her three children back from New Jersey’s foster care system in 2017, Iesha Hammons spent years hustling to make court-ordered classes and programs for parents, therapy and regular court dates.
She’s seen firsthand when those efforts fall short – her mother had her parental rights terminated when Hammons was around 10 years old, her first view of government authorities saying “you’re a bad parent” and removing your child.
Now, helping other impoverished parents accused of child abuse and neglect in and around Newark, Hammons said the current global public health crisis and related social strife have made strict legal timelines to reunify with children in foster care almost impossible to meet.
“Everything was hard before the pandemic, so how can it be any easier now with COVID?” said Hammons, who works as a parent ally with Legal Services of New Jersey. “It’s unrealistic what they are asking for, and the timelines they are asking for.”
Weighing such concerns, a bill now before Congress would suspend deadlines for child welfare agencies across the country to seek the most extreme consequences in America’s civil legal system: termination of parental rights.
Current federal law says that if children have been in foster care for 15 of the past 22 months while parents meet requirements to reunify, agencies should move to permanently sever their custody rights. Parents who cannot convince the court that they are making enough progress on things like drug testing, counseling, or attending domestic violence classes, stand to lose their children to adoption or relatives.
Yet during the pandemic, many court-ordered services have been severely limited, restricting parents’ ability to address issues that have landed them in family or dependency court.
“COVID-19 has created great uncertainty for many, causing millions to face housing, health, food and job insecurity,” Wisconsin Rep. Gwen Moore (D) announced Monday, introducing the Protecting Families in the Time of COVID-19 Act. “This unprecedented crisis should not lead to permanent damage to families because of a federal timeline created before this pandemic.”
In June, citing “the significant stress that the COVID-19 pandemic and resulting national public health emergency” has placed on the child welfare system, the U.S. Administration for Children and Families issued strongly worded guidance recommending that social services agencies take a more cautious approach to federal timelines.
“I cannot emphasize how strongly I urge agencies to carefully consider whether it is appropriate to terminate a parent’s rights” during the pandemic, stated associate commissioner of the federal Children’s Bureau Jerry Milner. Given the societal shutdowns, limits on family visits and in-person services have made it “virtually impossible for a parent to have an opportunity to achieve goals related to reunification requirements.”
Milner has called on child welfare agencies to more carefully evaluate the current challenges before taking the final step of terminating parental rights. But legal observers say many jurisdictions haven’t acted on that advice.
According to attorneys in California, Washington, New York, Texas and New Jersey, judges are taking starkly different approaches to whether the pandemic counts as a compelling reason to delay termination proceedings against parents.
“Across California, as with most issues, courts are all over the map,” said attorney David Meyers of Dependency Legal Services, in an email. Meyers’ nonprofit firm represents parents and children in Northern California. “Medium and small counties have tried to be as “business-as-usual” as possible, with hearings (both live and remote) continuing. Some families are getting the benefit of additional time; other families are detrimentally impacted by the crisis.”
The coronavirus pandemic has wreaked havoc on families across all swaths of America, whether through job losses, loved ones lost to the virus or increasing isolation as a result of social distancing protocols. But for parents nearing the federal deadlines to reunify with their children in foster care – a disproportionate share of whom are Black or Native American – another less discussed crisis looms large: losing rights to their kids forever.
Under the Adoption and Safe Families Act of 1997, states stand to lose federal funding if they don’t adhere to the “15/22” termination timelines, with some exceptions, such as when a child is living with a relative.
The timeline provision has remained the subject of significant controversy in the child welfare field ever since. Supporters say timelines are necessary to ensure kids don’t languish in foster care. Opponents say there are plenty of examples of families who safely reunified after ASFA’s deadlines, along with strong evidence that reunification should be prioritized over adoption or aging-out.
Many young lives were in limbo well before the pandemic. In the 2018 fiscal year, 71,254 children were waiting to be adopted after their parents’ rights were terminated, a steady 16% increase from 2014, according to federal data.
“Parents who were diligently working services required to provide a safe, stable home for their children suddenly, and through no fault of their own, found themselves unable to access these services due to COVID-19 pandemic-related lockdowns,” said Andrew Brown, distinguished senior fellow of child and family policy with the right-leaning Texas Public Policy Foundation, who is supporting Moore’s bill. “But the clock continues to run on arbitrary case timelines governing termination of parental rights, robbing them of precious time.”
The bill Moore introduced Friday is supported by a bipartisan coalition of advocates nationwide organized by the Illinois-based child welfare attorney Diane Redleaf, of United Family Advocates. Under the bill, the obligation for states or local agencies to petition to terminate parental rights “shall be suspended for the duration of any public health crisis period.”
Among other provisions, the bill also states that judges should not approve initial removals of children into foster care “due to any effect of a public health crisis.”
Likewise, if a child welfare agency’s plan for a child is reunification instead of adoption, that plan “shall not be delayed by service or treatment gaps that result from a public health crisis.”
Bill supporter Jeyanthi Rajaraman, who is a colleague of Hammons’ representing parents in court as chief counsel for Legal Services of New Jersey, said the legislation would remove concerns that federal funding could be in jeopardy if parental rights aren’t terminated.
“This bill liberates all the parties, including the judge, to take a pause and have breathing room to evaluate each case,” Rajaraman said. “The agency is supposed to work with the families toward reunification, but that’s not happening right now during the pandemic. It’s just not realistic.”