Advocates and lawmakers say families need and deserve extra time
A 10-year-old in a magenta zip-up sweatshirt playfully stretches a ball of slime between her hands while she stares at a computer screen. On it, she can see her father, Charles Redding, in a courtroom sitting more than 6 feet from his lawyer and a judge, Tanya Bransford, presiding in black robes behind plexiglass. The young girl had been at her elementary school this February weekday but was excused from class to log onto Zoom and help the judge determine if she and her brother should live with their dad, or if their father’s rights would be terminated. Normally, she’d appear in court, but the coronavirus pandemic means participating virtually instead.
When it’s her turn to testify before the Hennepin County Juvenile Court in Minnesota, the fourth grader removes her face mask printed with ponies, looks into the camera, raises her right hand, and swears to tell the whole truth. She breezes through the first set of questions, gushing about how much she enjoys visiting her paternal auntie, Tanya and about her most recent visit with her dad.
Joining Redding’s daughter in this virtual hearing is Andrea Braun, her court-appointed attorney, who asks her client where she wants to live. She doesn’t hesitate.
“With my dad,” she says. When Braun encourages her to elaborate, her eyes start to well. “Because. I really miss him.” Her dad’s lawyer asks her about their relationship. Does she feel safe with her dad and does he take good care of her? The girl sobs through her answer, one hand covering her mouth: “Yes.”
Once her testimony is over, she is excused from juvenile court which, in Minnesota, is open to the public. She wipes away her tears, hits the red “leave meeting” button on her computer, and is off to her next class, PE. Her 13-year-old brother will testify next, offering the same emotional plea to remain with his dad.
The two children now before the Hennepin County court are not being named by The Imprint to protect their identities and the precarious nature of their fate. Approximately 70,000 kids per year are awaiting adoption after having been permanently separated from their parents. That number has risen in recent years – from 62,230 in fiscal year 2015 to 71,335 in fiscal year 2019, the most recent stats available.
The mother of the two Minnesota children died in 2014, and five years later social workers removed them from their father’s home, placing them together with a foster mom they’d never met. And although she does not plan to adopt them, the state is pushing to permanently end their relationship with their father through the family law equivalent of the death penalty in a criminal case: The Termination of Parental Rights. The children are trying to convince the court to give him more time.
So are Redding’s lawyer and the childrens’ lawyer.
Despite their deep connection, this family will be legally severed for life unless the 43-year-old father can prove that he’s done all the court has asked him to do on a 12-month timeline and the months that followed, which coincided with one of the most devastating times in recent history for America’s most vulnerable families. That meant emerging from jail and quickly finding affordable housing for the trio, attending online classes without a computer, and presenting clean drug tests from a center that had suspended services during the pandemic.
Redding is among the parents of approximately 220,000 children nationwide per year who have had to follow court-ordered case plans or risk being legally severed from their children and having them “freed” for adoption. Despite the challenges to reunification posed by the pandemic, parents are still being held to a strict, federally imposed timeline put in place more than two decades ago.
In interviews The Imprint and Type Investigations conducted with lawyers, family members and child welfare advocates in at least six states, it’s clear that child welfare timelines have imposed unfair burdens and an unreasonable expectation for parents who — even under normal circumstances — have difficulty complying with court orders to get their kids back.
Presenting his challenges to the court that day in February and hearing his daughter’s testimony left Redding in tears. “It hurt me that they even made her get on the stand,” he said in a later interview. It was joyful, though, to hear the positive things both children had to say about him, he added. “It let me know that I actually do my job as a father.”
The children were taken from him in early 2019 after a child welfare worker, who was referred by law enforcement, visited and found his home in disarray. He had also been accused of domestic violence. Redding contends that the house was messy because he was in the process of moving out. He was set to serve a jail sentence of around nine months for a DUI at the Anoka County Workhouse, a minimum-security jail where he would be allowed to leave daily to work and have weekly visits with his children.
He had already arranged for his children to stay temporarily with his sister. Social services gave him a court-ordered case plan that included securing safe and suitable housing and completing domestic violence prevention classes.
Redding’s case isn’t an anomaly. Across the country, parents are being asked to complete strict and elaborate case plans made difficult, if not impossible, by the pandemic.
Attorneys say the reunification services that their clients are required to complete — including parenting classes, drug and alcohol abuse treatment, domestic violence prevention programs and mental health care — have been unavailable or severely delayed this past year. Some mandatory drug testing sites were temporarily closed, and required family visits that had to be conducted by phone or videoconference that clashed with poor access to technology.
But those types of disruptions were often disregarded as the parents’ court dates approached.
“The timelines haven’t stopped, but everything else has,” said Rachelle Stratton, Redding’s attorney. “Everything else the parents can do has stopped or been altered, but we’re not stopping the timeline. Is that fair to families? Are kids going to look back and say, ‘My dad couldn’t finish his case plan in the middle of a pandemic, so they terminated his rights’?”
Top child welfare officials are aware of the challenges these families are facing and have called on agencies to consider the effect of the pandemic. Jerry Milner, who was until January associate commissioner of the federal Children’s Bureau, issued multiple letters to state child welfare agencies urging them to take extra care in cases where access to services have “been compromised as a result of the pandemic.”
He said that the lack of available resources should not be viewed as parents’ failure to comply and might instead be an agency’s failure to provide “reasonable efforts,” meaning a good faith try to reunite the family. Milner, who was appointed during the conservative Trump administration yet earned the respect of a wide swath of child welfare experts, encouraged agencies to cautiously evaluate a family’s situation before taking the blunt action of terminating parents’ rights. His successor, Aysha Schomburg, took office last month; she declined comment for this story.
Attorneys for children and parents in multiple states interviewed for this story applauded Milner’s words, but said such suggestions are only helpful if they’re mandated — and they aren’t. Milner’s “COVID guidance failed to halt the push for quick terminations in child welfare courtrooms,” said Kathleen Creamer, managing attorney of the family advocacy unit at Community Legal Services in Philadelphia. “The plea contained in the letter was unenforceable, and indeed undermined by statutory language and daily practice in family courts.”
At issue is the 1997 Adoption and Safe Families Act, or ASFA, a federal law signed by then-President Bill Clinton that requires local child welfare agencies to request the termination of parental rights whenever a child has lived in foster care for 15 of the most recent 22 months, with very limited exceptions. Some states move even faster, petitioning to terminate parental rights within 12 months.
ASFA has always had both strong opposition and support. Lawmakers say they passed the law to offer permanent homes to children who were lingering in foster care, but the timelines have also made it difficult for families to reunify — especially now. Some ASFA legislation exists at the state level, but the federal law doesn’t take into account the slow process of recovery from substance use disorder, the reality of relapses or the complicated path to mental health treatment and reentry after incarceration.
These timelines were hard for parents struggling with poverty and racial discrimination before the pandemic, but its arrival has only exacerbated the existing issues.
“People in difficult circumstances have a hard time getting anything done, even in the best of times,” said David Meyers, a lawyer with Dependency Legal Services in California. “Just as the pandemic has widened the income gap, it has highlighted and increased the disparities between those with means — good internet service and equipment to use it — and those who struggle to make ends meet.”
During an email exchange, Meyers forwarded a redacted notice from a social worker saying that the agency planned to file for termination of the family reunification process, which often precedes termination of parental rights, calling it “an everyday occurrence.”
In Colorado, parents’ attorneys have also reported seeing a wave of orders to terminate parental rights over the past year. A survey of lawyers representing parents in child welfare cases there yielded more than 100 responses that identified pandemic-related issues, including lack of access to services and inability to comply with treatment plans, as impacting many of their clients’ child welfare cases.
A change in federal law is being eyed by advocates as the most powerful way to stop the clock. In August 2020, Rep. Gwen Moore of Wisconsin (D) introduced the Suspend the Timeline Not Parental Rights During a Public Health Crisis Act to do just that. The proposed legislation would lift the ASFA mandate during the pandemic and guarantee that states do not suffer federal funding cuts due to the policy change. It also specifies that a public health crisis is a compelling reason for agencies to not seek to terminate parental rights.
“COVID-19 has created great uncertainty for many, causing millions to face housing, health, food, and job insecurity,” Moore wrote in a news release announcing the bill. “This unprecedented crisis should not lead to permanent damage to families because of a federal timeline created before this pandemic.”
Moore, as a young mother, had to temporarily place her own child in foster care with relatives, and has long been an advocate for child welfare reform. She says that a fraction of the cost spent on foster care could make all the difference for a family in need. But too often that’s not what happens. “Where $80 a month more in food stamps would solve their problem,” Moore said, “we would rather spend $600 per month in a foster care situation than give them that $80 per month.”
Opponents of the bill argue that local child welfare agencies need to maintain their vigilance on timelines, keep conducting in-person visits and continue moving children from foster care into permanent homes, despite the pandemic. Some have expressed fears that with children stuck at home this past year, abuse and neglect may have gone unchecked.
“The lives of these children cannot be put on hold simply because caseworkers are worried about their own safety or family court personnel or foster agencies can’t figure out how to operate in the 21st century,” wrote Sarah Anne Font, a sociology professor at Pennsylvania State University, and Naomi Schaefer Riley, a resident fellow at the American Enterprise Institute. “Children’s needs for safe, stable and legally-recognized families do not recede because there is a pandemic.”
In this tense climate, parents’ attorneys are seeking innovative ways to keep families together and buy them more time. In Colorado, a local county department sent iPads to the Office of Respondent Parents’ Counsel, which assigns lawyers to parents, so they could have visits with their children. The department also asked libraries to leave their Wi-Fi on so low-income parents could sit in the parking lots and have virtual visits.
In New Jersey, a child and parent attorney wrote a letter to the commissioner of the state’s child welfare agency, cc’d to the governor, pushing for a moratorium on involuntary terminations of parental rights.
“Instead of lengthy, contested hearings that pit caseworkers against parents, families would best be served by hearings where all sides assess the needs of a case,” said Amy Vasquez, the attorney proposing the moratorium. She recalled emotional calls from parents who were denied visits with their children by their foster parents or relative caregivers for months during the pandemic. “Safety is paramount, but now it’s time to remember those months and extend time to heal these wounds in parent-child bonding.”
Stratton, Redding’s attorney, who as a supervising attorney has a caseload of about 40 clients, has successfully reunified some families, including two recent cases where, despite the negative impact of COVID-19, a potential termination of parental rights was successfully avoided.
One involved a mother of four who struggled with substance use disorder and was ordered by the county to attend a relapse prevention program while her children were in foster care with their grandmother. She started the classes, but once the pandemic hit, she had to stop them because of a health condition that put her at high risk for infection.
The mother faced criticism at every court hearing for not completing the plan, Stratton said. But after she completed a 30-day inpatient treatment program and nearly four months of outpatient classes, Stratton argued that there was no longer a safety issue, and the children’s guardian ad litem, a person appointed by the court to make recommendations in child welfare cases, agreed. The judge ultimately closed the case.
Though the family struggled with distance learning, all families were now facing those hurdles, the judge noted, and despite testing positive for marijuana, the mother was no longer using the drugs that first triggered the case to open.
Another client of Stratton’s had difficulty visiting her four children because their foster care providers, both relatives, were worried about exposure to COVID-19. She also had trouble proving her sobriety. Rather than risk contracting the virus at the community hospital where she would have to go to provide urine samples, she opted for a drug detection patch. But the patch was unreliable, Stratton said, and resulted in her testing positive for substances she swore she wasn’t using.
Eventually, the mother decided to go back to urine drug tests, which required her to drive an hour-and-a-half round trip to the hospital weekly. When her children were with her for the tests, she had to find child care because the hospital would not allow them inside.
“They deserved to be reunified. They got to the right place,” said Stratton. “It just took a lot longer than it needed to.”
Redding’s fight to reunify with his two children is still ongoing. He was released from the Workhouse in November 2019 and spent the next year trying to reunite with his children.
He managed to meet some of the many requirements, by providing clean urine samples and having visits with his children, but others — like completing a domestic violence program — proved far more difficult. His parole officer required a specific class, but there was a waitlist for it. Once he got in, it moved online and he didn’t have a computer he could use to participate. Eventually, he received a laptop from Stratton’s office and was able to follow through.
When in-person visits were canceled due to COVID-19 restrictions, Redding maintained frequent contact with his children via video chats and cell phone calls. Even if it meant calling from someone else’s phone, he talked with his young teenage son almost daily and spoke to his elementary school-age daughter most weekends when she stayed with his sister Tanya.
In May 2020, after reaching the ASFA deadline, Redding received a petition to terminate his parental rights. It stated that his children had been in foster care for 12 months, Minnesota’s deadline, and that he hadn’t made significant progress to rectify the problems that had resulted in the children’s removal.
During Redding’s Feb. 2, hearing, Abigail Anderson, the child protection investigator with Hennepin County’s Department of Human Services and Public Health, acknowledged that Redding’s situation was unusual, complicated by the fact that the children’s mother never filed the paperwork to declare Redding their custodial guardian and that at the time of the removal he was facing a jail term.
“We would never ask for out-of-home placement for these kids, if he wasn’t going away to the Workhouse,” Anderson testified. “We would have offered services and expected him to comply.”
Anderson also said she tried to find other relatives who might take the children in but wasn’t successful. “We don’t want your kids to go into foster care with someone they don’t know,” Anderson said during the trial. “These are nice, nice, kids and that’s not an outcome we want for kids.”
Anderson said she would have liked to place the children with Redding’s sister, Tanya, who wanted to be their foster parent. But while the children are allowed to stay with her on weekends, she faced legal barriers to becoming licensed — a common challenge that disproportionately impacts people of color seeking to care for children to avoid foster care.
In his February hearing, an exception was made for Redding to appeal directly to the judge, who was seated in a near-empty courtroom. His attorney believed that strategy would inspire more compassion than if he was reduced to a “two-inch thumbnail” on a computer screen, which dulls the human emotion of testimony, she said.
“I think about the small things that used to happen in trials, like the judge would have seen Mr. Redding and the kids,” Stratton said. “And they are freaking adorable when they’re together. They clearly have such a great relationship, and the judge doesn’t get to see any of that.”
In-person trials encourage judges to restart visits, send kids home on unsupervised visits or simply close the case, Stratton added. “And this pandemic has affected all of that,” she said. “Nobody in Mr. Redding’s case has observed these children with him. Nobody.”
In the months after his February hearing, Redding saw his children weekly and moved in with Tanya.
After another hearing in March, Judge Bransford issued her decision. Redding’s child welfare case remains open, but she did not terminate his parental rights. Instead, she ordered unsupervised visits during the week, and overnights on the weekend.
Redding is relieved and has already begun another parenting class, his attempt to do everything he can to regain full legal rights for his children. “I’m very happy and now I’m working on getting them back,” he said. “They will not be labeling me as a bad father.”
This story was reported in partnership with Type Investigations with support from the Puffin Foundation.