Observing court one day, I heard one of those remarks that should stun anyone within earshot.
Testifying in the case being heard, in which a family separation was on the table, the caseworker remarked, “No, I didn’t make reasonable efforts to reunify because the mother was homeless and was living in a room in a shelter.”
When I heard the worker say that, I geared up for the heated inquiry that I thought would ensue. Why didn’t the worker make any efforts? Couldn’t she have explored whether any services could have kept the baby — who had special medical needs — with her mother at the shelter? Was there any reason to think that services wouldn’t be effective? Did the law excuse her from making these efforts? Without even exploring these efforts, could we possibly say that separating the child from her mother was the only — and best -— course of action? My mind was spinning with the possibilities.
But none of those questions were asked. Instead, the hearing simply went on. The caseworker’s attorney didn’t explore her client’s lack of reasonable efforts. The parent’s attorney asked a few unrelated questions, while the child’s attorney literally didn’t say a word. The judge simply moved on, but dutifully remembered to check the box that “reasonable efforts had been made, consistent with the circumstances.” He made this finding despite the fact that the worker had conceded that she had made no effort whatsoever.
When I described this situation to colleagues in the field, few seemed surprised. Because all too often, professionals within the child welfare system blindly accept what is stated in and out of court without asking the right questions that might expose false assumptions. For example, incarcerated parents are routinely denied contact with their children in foster care based on blanket assertions that visits in prison are not good for children, despite the fact that millions of children outside the system visit their parents each year.
Relatives are forced into adoptions under the guise that it is the only permanent option, even though research reveals that other arrangements that do not require terminating parental rights — like a guardianship — offer the same amount of stability. Visits between parents and children are supervised as the default arrangement, even in many cases of poverty-related neglect where there is no evidence that the parent would intentionally harm a child in any way.
What would happen in these situations if we embodied the mindset of the most precocious three-year-old and asked a simple, yet powerful question, “But why?”
Might that question force all of us to stop, reflect and jolt us away from our default mode of thinking? Might it get us to question our prevailing assumptions to determine whether we are making the best decisions, consistent with the law and research? Might it get us to think about each case as a unique circumstance, as opposed to just another one of “those cases” that we don’t have to pay attention to?
I have the privilege of witnessing the power of asking the right questions each year when new students in my Child Welfare Appellate Clinic — who represent parents in termination of parental rights appeals — began to question every aspect of what transpired in the trial court after reviewing the record. Having no child welfare experience when entering the clinic is their superpower, as we challenge them to trust their instincts and identify practices which intuitively feel wrong to them.
This superpower has led these students to get Michigan appellate courts to declare unconstitutional a statute that allowed for the termination of a parent’s rights based solely on a prior termination, to find that a practice that permitted courts (for 70 years!) to place a child in foster care without finding both parents of a child to be unfit violated the non-offending parent’s rights, and to hold that when a child welfare agency did not accommodate a parent’s disabilities consistent with the Americans with Disabilities Act, they could not seek termination of parental rights. These transformational decisions were all sparked by inexperienced law students having the courage to ask, “Why do we do this? Why is this allowed?”
Simply asking “why” forces others to show their work, explain their thinking and reveal flawed assumptions. The exposure of false assumptions can create the space for new opportunities. If the judge had embodied the three-year-old version of himself and asked “why,” maybe that baby would still be with his mother in the shelter. Perhaps the community would have services available to work with families in temporary housing. Or perhaps the judge and the agency could have just figured out how to get the mother her own housing.
We’ll never know these answers because no one had the courage to ask “why?”