Consider this scenario, likely to repeat itself across the country. In a month or two or more from now, my client will appear before a juvenile court judge for the first time since the coronavirus crisis forced courts to close their doors. In the intervening months, she didn’t have the chance to visit her child. She wasn’t provided with any services since most providers couldn’t operate due to public health concerns or executive orders.
What did not stop during this time period was her substance abuse issues – rather, they continued on in full force, exacerbated by anxiety, isolation and fear heightened by the pandemic. Little progress, both substantively and procedurally, will have been made toward reunifying the family.
How will we respond to this? What will we do when parents – through no fault of their own – have lost connections to their children? Or have lost access to resources that would have helped them address the safety risks that brought their children into foster care? When we are fortunate enough to look back on the world that was paralyzed by coronavirus, how will we pick back up the stagnated child welfare cases and move them forward?
Across the country, the pandemic has hampered child welfare systems. Most courts have shut down, only holding emergency removal hearings. In some places, in-person visits between parents and children have been suspended, with parents only being offered more limited opportunities to connect with their children, such as over the phone or on the computer. Services that parents were promised to help them reunify with their children aren’t being provided. Parents who need to access substance abuse treatment are being told to wait.
The world has hit the pause button. Time is standing still.
But time never stands still for families in the child welfare system. Every day a parent remains separated from her child inflicts additional trauma in the lives of both the parent and the child. Every day a child stays with another caregiver might make it more difficult for that child to transition back into the home of her family. Every day a child remains in foster care is typically a day closer to a court reaching a decision to permanently destroy the family by terminating parental rights. The clock keeps ticking for families in the system.
How courts and agencies proceed after we lift our finger off the pause button will reveal the true values of the child welfare system. Are we serious about our commitment to reunifying children with their parents? Do we care about principles of justice and fairness and truly believe that every parent and child should be given a fair chance to live together? While we often profess that the constitutional right of parents to care for their children is one of the most fundamental and bedrock principles our country values and protects, do we actually mean it?
This crisis gives us a chance to change this trajectory and to unequivocally express our commitment to keeping families together and reunifying families as quickly as safely possible.
But to do so, we must make extraordinary efforts. First, courts and agencies must review every case on their caseload and determine whether children can be returned immediately where children will not face a substantial risk of harm. If so, courts should enter orders making that happen right away.
Second, courts and agencies must ensure that parents and children maintain as much connection as possible during the crisis. In some cases, in-person visits may still be possible. In others, contact via telephone or in person might be available. These decisions must be made on an individualized basis. Blanket orders in which courts abdicate their responsibility to adjudicate each case on its own are unacceptable.
Third, when courts resume hearing cases, they must liberally apply the broad exceptions to the federal timelines requiring them to order the filing of termination of parental rights petitions when children have been in foster care for 15 out of 22 months. Federal law allows courts to disregard this timeframe when “the State has not provided to the family of the child, consistent with the time period in the State case plan, such services as the State deems necessary for the safe return of the child to the child’s home.”
Additionally, the law excuses the timeframes when a “compelling reason” exists justifying why filing a termination of parental rights is not in the child’s best interest. This pandemic certainly constitutes such a compelling reason.
Finally, and perhaps most importantly, when our system resurfaces after this crisis wanes, we must extend compassion to both parents and child and recognize the pain they have experienced. We must notice the pain of family separation exacerbated by the pandemic. We must affirmatively acknowledge that pain, through our words and actions. In other words, we must let families know that we see and hear their pain.
And then we must act and do something to address that pain. That might involve spending a court hearing simply listening to their story. Extending statutory deadlines. Giving them extra time with their children. Providing them with additional services, regardless of the expense. Making active efforts to reunify families, even though the law doesn’t require it.
Extraordinary times call for an extraordinary response. Only time will tell whether our system will rise to this challenge.
Vivek Sankaran is the director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University of Michigan Law School. Follow him on Twitter at @vivekssankaran.