Neale, Joanna

English

Research Papers in Economics

CASE LAW APPROACH  TO FAMILY POLICY
Joanna Neale
Michigan Probate Court Judge
The impact of national and state policies and decisions on the daily
activities of a rural court and all it touches and concerns can be seen
clearly in the microcosm  that is Cheboygan County, Michigan.
The jurisdiction  of a Michigan probate  court  is two-fold.  First
there is the traditional probate jurisdiction,  handling  estates, mental
health codes,  guardian- and conservatorships  and care  of the  devel-
opmentally  disabled.  Second,  there is the very special juvenile  divi-
sion. In other states,  this jurisdiction is sometimes shared by a family
court. But in Michigan it is the juvenile  division of the probate  court
that has jurisdiction regarding children.
This is a  civil,  not a criminal,  court.  This becomes important  par-
ticularly  when we consider child abuse and neglect which,  in the ju-
venile  system,  are dealt with in child protection  proceedings.  Here,
child protection  matters are heard by family or juvenile judges who
can influence  the action of parents,  order  services,  place  a child  at
home  under agency supervision or remove the child from the home.
Since probate  court is not a criminal court, we  are not concerned
with punishing offenders but with civil protection of the child. This  is
important  in understanding why things happen in juvenile court the
way they do.
Probate  court is traditionally there to address  the needs of chil-
dren  and,  incidentally,  families.  Courts have long  articulated  the
fundamental  right  of parents  to rear their children.  To terminate
those parental rights is the most profound action a juvenile or family
court  can undertake  in  virtually  every state  of the  Union,  and that
usually only after long periods of time and many hearings.  This is
often fraught  with great concern and adherence  to the considerable
legal  responsibilities that must be fulfilled  before parental rights are
terminated.  We  are impacted  daily by various federal  and state  en-
actments that really begin to measure what it means to terminate  pa-
rental rights.  In other words, to destroy one family while,  hopefully,
providing a child with another.
Author Pearl Buck  said,  "Children  are our national treasure  and
167with what measure we mete  to them in their childhood,  they will
mete  to our nation during  their lifetime."  The wisdom  in  her state-
ment has become increasingly apparent.
Children have not  always been considered  a national treasure.
Criminal cases  involving child abuse in the United  States date back
to the  mid-1600s when  criminal  action was taken  against parents for
cruelty,  desertion  and permanent  injury. But after  such criminal ac-
tion was taken  against parents,  their children were  often committed
to public almshouses or bound out in involuntary servitude  where
further harm could result.
Many of our attitudes  about  children have  changed dramatically.
In  1875,  the first documented case of a civil cause of action for child
protection  occurred in New  York City. This landmark case involved
a child named Mary  Ellen, cruelly  abused and used by her guardian
stepmother.  Efforts to intervene were unsuccessful because there
was no access to any judicial forum.  But the director of the Society
for the Prevention  of Cruelty  to Animals,  determined  to  help,  took
the case  to court under animal protection  laws and won.  As a result
of this case,  our nation was made aware of the need for child protec-
tion laws.  Jacob  Riis,  a reporter  for The New York  Times,  believed
he had been present at the birth of children's rights.
The juvenile court system  began in Illinois in 1899  and some thirty
years later  forty-six  states  had juvenile  courts.  Reform  movements
led to the establishment  of the first juvenile institutions  and to a new
awareness  of the responsibility  of the state  for the  ultimate  protec-
tion of children.
In  1944  the United  States Supreme  Court first recognized  a broad
state  responsibility in the area of child protective  intervention in the
case of Prince v. Massachusetts.  Justice  Rutledge upheld  a state's
child labor law, saying  the family itself is not beyond regulation in
the public interest and the state has a wide range  of power  for limit-
ing parental  freedom and authority  in things affecting  a child's  wel-
fare.  Courts used the doctrine of state intervention  as the "super
parent," parens patriae,  and ordered placement under the theory  of
"best  interests,"  actually  a  child  custody  concept.  These  doctrines
did not,  however,  address the range  of maltreatment  problems or
the range of children's needs.
This changed  in  1962  when  an article  describing the  "battered
child syndrome"  appeared  in the Journal of the American Medical
Association. This stimulated public awareness  of the economic  costs
to society and the devastation to children socially  and psychologi-
cally.
By 1968,  all states had reporting laws. The reporting laws and wel-
fare  codes allow protective services  and law enforcement  to investi-
gate  and  intervene  in family  relationships;  Juvenile  Court  laws  au-
thorize  the  courts'  involvement.  These  laws,  permitting  state
168intrusion into the  family,  are balanced  by Constitutional  principles
pertaining to family integrity and due process rights. That type of in-
tervention  continued  with  an enormous  emphasis  on foster care
which was very much supported  by governmental programs.
In the 1970s, judicial decisions began to stress the importance of
permanency and the effects  of prolonged foster care.  Many cases
showed instances in which children had been in foster care for five,
six, even seven years before actions were instituted to terminate pa-
rental rights, a situation called  "foster care drift."  The  "solution"  of
removal and prolonged  foster care was soon to be  addressed.  Judi-
cial projects,  such as the benchbook prepared by the National Coun-
cil  of Family Court  and Juvenile  Judges, addressed the importance
of permanency  for foster care children.  Congress heard five years of
testimony on foster care and adoption and, in  1980, passed the Adop-
tion Assistance  and Child  Welfare  Act to achieve permanence  for
children and for families at risk of separation.
This not  only responded  to the national predicament  of "foster
care drift,"  but recognized  the importance  of the family in our soci-
ety.  A  1976 Michigan case, Reist v.  Bay Circuit Judge, referred to
other high court cases in Nebraska,  Maine and New York, which all
essentially  found that the  family  entity  is the  core  element  upon
which modern civilization is based.
Traditionally,  the integrity of the family unit has been zealously
guarded by the courts.  The fundamental  nature of parental rights as
a liberty protected  by the due process clause of the Fourteenth
Amendment  has been given expression  by the courts.  That  is why,
in child custody  cases,  indigent parents are provided  attorneys  and
court transcripts at public expense.
As a result of the Adoption Assistance and Child Welfare  Act, fam-
ily  preservation  became  part  of our national  welfare  policy.  States
are provided  financial  incentives to encourage  better  monitoring of
children in foster care. In order to secure the blessings of the federal
government,  states must submit a plan to make reasonable  efforts to
prevent children from being removed  from their homes and a judge
must rule that reasonable  efforts have been made to prevent or elim-
inate the need to remove a child from its home. The state  plan must
have  assurance that services  are provided to facilitate the return of
the  child  to its  own home  or to find another permanent  home.  The
states followed with permanency  planning legislation.  Some state
laws  allow  the courts to order the provision  of services.  The  Michi-
gan legislation creates  a real calendar  of events in the life of a child
in foster care.  There are hearings every ninety-one  days and at the
end of one year a determination must be made on permanency.
State courts  also have  the responsibility  to make judicial findings
that  the agency  has  made  reasonable  efforts to  prevent placement
and reasonable efforts to reunify the family.  However, the courts are
169given no  guidelines as to what constitutes  reasonable  efforts.  The
federal government  does not define  it and this  creates problems  for
those states that do not permit judges to order specific  services for  a
child if they deem them necessary.
In Michigan,  litigation is presently occurring because one of our
juvenile judges  did order services  in the alternative.  The  Michigan
Department  of Social Services  said this cannot be ordered,  only rec-
ommended  in generalities  and if specific  services  are ordered,  they
will not pay for them. This places  our courts in a unique position be-
cause  the judge  is truly assessing  and evaluating  the  reasonable  ef-
forts that have been made to prevent removal and/or facilitate re-
unification  as required by federal  and state law.  If the judge finds
such  efforts  were  not made,  the  federal  contribution  may  not be
forthcoming  and the care  of the child and attendant costs become
the responsibility  of the funding unit. In Michigan the "funding unit"
each judge  would  look  to would be  counties such  as  our little Che-
boygan County.  This makes  it  difficult for both the judge and the
county to achieve  the outcome they  seek. The  Michigan  decision  is
on appeal from an administrative judge's finding that the courts have
no authority to specify  services.
In one  particularly interesting recent  case,  the matter of Artist  M.
et al.,  on appeal from the U.S.  Court of Appeals,  Seventh Circuit, it
was held  that, under the  Adoption  Assistance  and Child  Welfare
Act, the plaintiff child's  class  action could be maintained  for alleged
deprivation of the child's federal statutory  rights and,  in addition,
could pursue an individual cause of action  against the  Michigan De-
partment of Social Services because  the "reasonable  efforts" clause
creates  an individually  enforceable  right  to such  "reasonable  ef-
forts."
Our literature and public pronouncements  of policy seem to  favor
family strengthening  and preservation  and we must, then, do all we
can to keep the family whole.
Policy  and law have placed great responsibility  upon  courts in-
volved  in child protection  matters  and, in order  to follow  the  law,  it
presupposes the funding and services  will be available for the goal of
family  preservation  and  of permanency.  I  have  mentioned  funding
dangers.  If you live in  a part of this country where services  are
limited,  as they  are in rural northern Michigan,  a fair  amount of in-
novation  is often required.  Ira Swartz  of the University  of Michigan
recently  indicated  that 50  percent of poor children  live  in rural
areas.  In effect, this  means that after  all  those  "reasonable  efforts"
the resources may not be there.
In our county of 25,000,  we presently have two  counselors,  limited
mental health services and one special counseling agency funded for
substance  abuse.  There are  no counselors  for  sexually abused  chil-
dren or their abusers.  We have to find services outside the county
170and that often means removing the child from the community.  This,
despite  a strong belief that the more we  can do  within to bring the
child  and family together using available therapy/services,  the more
the  family is strengthened.  We cannot strengthen  families  when we
separate them to receive services or when there is no available tem-
porary foster care.
And I think this is perhaps more a matter of human resources than
financial.  I don't know  the statistics,  the numbers  of young students
entering the various helping professions. We certainly are not seeing
many. This, again,  means people who want to give expression to the
higher purposes  of family reunification  and strengthening  often find
much has to be generated by the community itself.
In our community  we  are just establishing  a family  resource cen-
ter.  It was  established  in response  to the enormous  needs  children
and families have  for services,  heretofore unavailable.  Fortunately,
we  have  a very strong county extension  office  which has agreed  to
share  the services of the extension home  economist.  In the juvenile
court,  where she has been given the title of Director of Special Ser-
vices,  the extension home  economist has established  marvelous pro-
grams  for both adults and  children in the rural parts of Cheboygan
County.  Such programs may be readily available  in urban areas, but
are  often totally unavailable in rural America  where so many im-
poverished people live.  Her efforts are generating  a great deal of in-
terest in the Department  of Social Services  and have  created  a
healthy  increase  in the linkages  between the Department  of Social
Services  and the court. Even some  of the juvenile court attorneys
are  beginning  to  respond  to the perceived  needs  of the  growing
number of really  impoverished  people  who cannot begin  to face or
solve family problems. Let me cite an example.
Recently,  a  couple  and  their three children who  live,  literally,  in
the back woods were separated  based on neglect, a primary reason
for  intervention.  The house  this couple  and their children  called
home did not have plumbing and some of the other things the Health
Department considers  basic to a child's safety today. It was impossi-
ble for the Department  of Social Services to spend the $1,849.00  nec-
essary to bring their home  up to code  so the  family  could live to-
gether. But the parents,  poorly educated,  could comprehend neither
why no one would lend them the money to make the necessary im-
provements nor why the man from whom they had purchased the
house had never given them a deed. We requested their court ap-
pointed attorney  find out why  these people had never received  a
deed. Land matters can be very tough and unrecorded land matters
can be horrible.  But last week the attorney  came into my chambers
ecstatic.  He had located the owner and obtained the  deed.  Now,
having the deed,  we have to raise the money. That's a little more dif-
ficult.  But the  assistant  prosecuting  attorney,  hired  solely for juve-
nile  court because our  county considers  it to be a very  important
171place,  suggested organizing a "work bee"  to bring this family's home
up to code.  I have a feeling he may well do it.
Often,  however,  cases  don't have  such  happy  outcomes.  Case
service  plans,  for example,  often build impossibility into the time-
liness  in order to follow the letter  of the law.  Parents  may be re-
quired  to have  individual counseling  on  Monday,  group  counseling
on Tuesday, family counseling on Wednesday,  meet with the Home-
maker  on Thursday  and  attend substance  abuse counseling on  Fri-
day. And these people may lack transportation.  So one is disinclined
to approve a case service plan that is so busy. There is a great in-
clination to say, "Let's be realistic."  I think in the desire to dot every
"i"  and cross  every "t,"  decisions  can be made to require a com-
pliance without thinking what that really means.  Under our present
system,  after a year has elapsed,  if the family doesn't rectify matters
that brought them in front of the court,  a decision must be made re-
garding permanency.  Permanency  is highly prioritized  and based
upon the assumption that children need a stable and predictable  life,
but in rural areas, great stress is placed  upon individuals  and the
system by unrealistic  expectations  coupled with a lack of individuals
to provide  many of the services  stipulated by the case  plan as a
requisite to reunification.
The funding mechanism  and the financial realities of counties that
cannot assume the  financial burden if federal  funding is  withdrawn
also  create  situations  that encourage  findings  of "reasonable  ef-
forts."
Blocking  the  courts from  giving  specific  guidelines,  definitions  or
suggestions,  having legal  expectations  for families,  tying the judges
hands and not providing  human services  with the resources  they
need under the law to do their job add to the problems.
The community,  however,  is united in its belief in the  values of
family and in child protection.  The court has been revitalized by the
partnership  with the Cooperative  Extension Service.  Maya Angelou,
writing  about family preservation,  said,  "At  our best level of
achievement,  we  work  to keep the  family  alive."  Sometimes  those
words sustain a person at the end of a day fraught with total frustra-
tion.  And that belief did  recently  inspire  one young  Michigan  attor-
ney to  say, "They're  going to get their kids back. I'm going to make
sure there is a place for them to live."
172

CASE LAW APPROACH TO FAMILY POLICY

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Research Papers in Economics