Reasonable Efforts in an Unreasonable World

Vivek Sankaran

Vivek Sankaran, University of Michigan Law School

Every day, child welfare systems confront the effects of America’s misguided social policy. Draconian criminal laws and unjust sentencing policies result in the unnecessary separation of children, particularly those who are African-American, from their parents.

Harsh cash and food assistance programs, often coupled with onerous work requirements, fail to address the decades of discrimination that kept well-paying jobs from families of color. Inadequate housing assistance programs do little to combat the years of racism that limited housing options for families, or steered African-American families into substandard housing within troubled neighborhoods.

In short, incarceration, poverty and homelessness, among other social ills, are not unexpected consequences of our designed policy. To the contrary, our country’s long history of discrimination put families in precarious situations, yet our meager attempt to support families ensures they have little chance of escaping. Our society mirrors exactly what our policies hope to accomplish.

The child welfare system operates within this construct, one in which families have been marginalized by government policy. Unsurprisingly, when the stressors of incarceration, poverty and homelessness confront a family, the possibility of child maltreatment significantly increases. In other words, when families are crushed by the weight of limited options and resources, they are in their most vulnerable state.

And often, that’s when the government – through the child welfare system – finally starts paying attention to that family.

So the question confronting our child welfare system is this: how much do we acknowledge the unreasonableness of our government’s policies toward the poor as we determine how to structure our system? Do we care that quality housing is unavailable to millions of families across the country? Do we bother acknowledging that many individuals, despite their best efforts, will never be able to obtain a job that pays a living wage? Do we openly talk about the fact that parents in certain communities will be subject to unjust lengthy prison sentences because of our unfair criminal justice policy?

Or do we remain blind to these realities?

We must have the courage to recognize the structural inequities that impact our work in child welfare. And when we do so, how might we take them into account as we move forward? Here’s one idea. Recently, Judge Len Edwards wrote an excellent column on the need for judges and attorneys to play a bigger role in enforcing the federal requirement that agencies make reasonable efforts to prevent kids from being removed from their families. And to get kids back home with their parents. I couldn’t agree more.

But let’s think more deeply about what it means for an effort to be “reasonable,” given the decades of government policies that have relegated so many to have so little. The Macmillan Dictionary defines “reasonable” as being “fair and sensible.” Given the structure of our society, is it “fair and sensible” for a child welfare agency to believe that a parent can get housing by simply giving them a list of possible places they might live?

Is it “fair and sensible” to think that a parent can get a job by simply referring them to a GED program? Is it “fair and sensible” to think that a parenting class can remedy the fact that many of the parents in our system themselves grew up without their parents around due to high rates of incarceration and lengthy sentences?

Given the history of our child welfare system and our regressive governmental policies, we must extract more from the word “reasonable.” A reasonable effort cannot be passive, nor can it ignore the decades of discrimination and unjust policies that contributed to a family’s struggle.

At a minimum, federal law should explicitly define reasonable efforts to require agencies to define the barriers confronting the family, including any historical reasons contributing to the barrier, and should mandate that agencies specifically identify the measures they will take to partner with the family to overcome them. That approach strikes me as “fair and sensible.”

How might this look in practice? Rather than handing a family an outdated list of potential housing options, it might mean that a caseworker will accompany a parent to apply for housing, or advocate for additional housing subsidies to support the family. Rather than asking an intellectually disabled parent to set up an appointment on her own, it might mean being on the phone line with her. Rather than sprinting to termination of parental rights where a parent has been incarcerated, it might mean advocating for a less restrictive alternative, like a juvenile guardianship, to allow for the preservation of the parent-child relationship.

For far too long, child welfare systems have been agnostic about the factors that have led to a family’s predicament. They have intentionally ignored the ways in which government policies and discrimination have placed families in vulnerable positions. In such an unreasonable world, reasonable efforts must involve more than handing parents a list of what he or she must accomplish.

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