Time to Change: Mediation in Child Welfare

Faria 1

Kayla Faria

Professor Rubinson

Mediating Family Disputes

30 November 2015

Time to Change: Mediation in Child Welfare

Introduction

The clock is ticking. In the child welfare system, time is not a family friend. As a student

attorney 1 representing impoverished parents facing intractable barriers that included

homelessness, unemployment, drug addiction and intimate partner violence, I so often just wanted

to buy them time. Counseling these parents in crowded courthouse hallways minutes before their

case numbers were called before judges with overburdened dockets, I wanted to buy them time to

tell their story, find safe, affordable housing, secure a living-wage job, and complete the recovery

treatment program. Skimming case files smack-dab in the throes of a system intent upon

reconstructing the past, I just wanted to buy these parents time now, so that their children might

have a future. For parents hauled into the child welfare system, time is one of the many things

working against them. I wanted them to have enough time to get their kids back and feel like they

were being heard. I wanted mediation to happen at a different time to change time in child welfare.

1 As a rising third-year law student, I became certified to litigate cases with Rhode Island Legal

Services, pursuant to Rule 9 of the Rhode Island Supreme Court. Practicing law full time, I handled

child dependency, neglect and abuse cases, appearing before three different judges and four

magistrates in Providence, Washington and Kent counties. RI R S CT ART II ADMIS Rule 9.

Faria 2

This article critiques the federally-mandated timeline and reactive use of mediation in child

welfare cases, and then analyzes the therapeutic benefits and challenges of employing mediation

as a proactive, alternative response to filing a child neglect petition. It proposes a mediation model

that has the potential to change the legal culture of child protection, transform the relationship

between parents and the state, create judicial efficiency and deliver true permanency for children

by buying their parents time.

Background

Timelines in the child welfare system are dictated by the Adoption and Safe Families Act

(ASFA) of 1997. It requires states to file petitions to terminate the rights of parents whose children

have been in the state’s custody (e.g. foster care, group homes) for 15 of the last 22 months.2 The

“ticking clock” can start when the judge makes a finding of neglect or 60 days after a child is

removed from the home.3 And the decision to terminate parental rights (a necessary severance

before an adoption can take place) 4 often comes at the ASFA-mandated 12-month permanency

hearing.5 In this way, the federal law “converts every day that a child spends in foster care into

one more tick of the clock in a countdown toward termination of parental rights.”6

2 42 U.S.C.A. § 675 (West). 3 Id. 4 Susan L. Brooks, Therapeutic Jurisprudence and Preventive Law in Child Welfare Proceedings:

A Family Systems Approach, 5 Psychol. Pub. Pol'y & L. 951, 956 (1999). 5 National Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with

Disabilities and Their Children, 103 (27 Sept. 2012). 6 Paul Chill, Burden of Proof Begone the Pernicious Effect of Emergency Removal in Child

Protective Proceedings, 41 Fam. Ct. Rev. 457 (2003).

Faria 3

Hyper-focused on assigning parental fault, the ASFA’s structure fails to account for the

unavailability of family preservation services 7 and the continuity component of permanency i.e.

the child’s strong interest in maintaining a relationship attachment with parents.8 The federal law

also reimburses states’ for each adoption achieved, providing specific financial incentives for

states to increase adoptions.9 It offers no financial incentives to achieve permanency through

reunification or any other means.10 Outlining “short,” “rigid timeframes,” the ASFA’s “dramatic”

provisions make adoption the primary avenue to permanency, creating a hostile atmosphere for

parents and skewing child welfare matters toward expediting termination of parental rights,

thereby producing per-se anti-therapeutic consequences for children and families.11

Therapeutic jurisprudence centers the law’s impact on the emotional life and psychological

well-being of legal participants, producing consequences that either promote (therapeutic) or harm

(anti-therapeutic) a person’s “mental, emotional, and/or physical health.”12 It also focuses on

7 It can take months to get the results of psychological evaluations and drug test. Sarah Clark

Bowers, Dependency Cases-Litigate or Mediate?, 70 Ala. Law. 428, 430 (2009). In many

instances, the department’s funding tied to services does not immediately “kick in,” instead taking

time to process after the child welfare agency has made a referral for services. And, as a matter of

policy, some child welfare agencies cease to provide services and funding after filing a termination

of parental rights petition. In re Brooklyn M., 933 A.2d 1113, 1126 (R.I. 2007). Considered

together, all of these factors create a remarkably fast-ticking clock for low-income families. 8 Brooks, Therapeutic Jurisprudence, supra, at 956-9. 9 Amanda M. Walsh, Legal Permanency Isn't Everything: Readdressing the Need for Well-Being

Indicators in Child Protection Courts, 53 Fam. Ct. Rev. 326, 328 (2015). 10 Susan L. Brooks, The Case for Adoption Alternatives, 39 Fam. & Conciliation Cts Rev. 43, 45

(2001). 11 Susan L. Brooks, Therapeutic Jurisprudence and Preventive Law in Child Welfare Proceedings:

A Family Systems Approach, 5 Psychol. Pub. Pol'y & L. 951, 955-7 (1999); Susan L. Brooks, The

Case for Adoption Alternatives, 39 Fam. & Conciliation Cts Rev. 43, 45 (2001); Susan L. Brooks

& Dorothy E. Roberts, Social Justice and Family Court Reform, 40 Fam. Ct. Rev. 453, 454 (2002). 12 Christina A. Zawisza, Taking Hold of the Elephant in Child Dependency and Neglect Cases, 17

St. Thomas L. Rev. 531, 539-40 (2005).

Faria 4

“treating litigants with dignity, respect and fairness” as a way to “give the clients ‘voice’ and

‘validation.’”13

Analysis

With a goal of permanency, child welfare should be an ideal legal field to operate

therapeutic jurisprudence. Instead, the law and practice of child welfare is “woefully anti-

therapeutic”14 and “highly adversarial”15 because the system is set up to funnel children into

adoptive homes. The Adoption and Safe Families Act “invites an increased amount of highly

stressful, adversarial litigation,” on the road to terminating parental rights - creating “legal

orphans”16 under the auspices of permanency.17 Permanency is “the idea that every child deserves

a safe, secure, stable, and continuous home in which to grow up.”18 The body of law guiding the

child welfare landscape is intended to further the goal of permanency. But, in the child welfare

13 Id. 14 Brooks, Therapeutic Jurisprudence, supra, at 952-5. 15 Brooks, Adoption Alternatives, supra, at 46-7. 16 In this context, the phrase “legal orphan” is used to describe a child whose parents’ rights have

been involuntarily terminated or relinquished, yet a permanent, adoptive family, has not been

identified or the adoption has been delayed. Raquel Ellis, Ph.D., Karin Malm & Erin Bishop, The

Timing of Termination of Parental Rights: A Balancing Act for Children’s Best Interests. Child

Trends Research Brief, Pub. 40, 13 (2009). 17 Susan L. Brooks & Dorothy E. Roberts, Social Justice and Family Court Reform, 40 Fam. Ct.

Rev. 453, 454-55 (2002); Susan L. Brooks, Therapeutic Jurisprudence and Preventive Law in

Child Welfare Proceedings: A Family Systems Approach, 5 Psychol. Pub. Pol'y & L. 951, 957

(1999). 18 Brooks, Therapeutic Jurisprudence, supra, at 953.

Faria 5

context, permanency has come to represent “an undue emphasis on adoption and adherence to a

rigid time frame, neither of which fits with a truly therapeutic approach to children and families.19

Permanency goals are aimed to “end the uncertainty of foster care.”20 But the state must

file a petition to terminate a parent’s rights, regardless of whether any adoptive parents have shown

interest or been identified to care for the parent’s child. The ASFA’s emphasis on time spent in

foster care “inherently reduces” the substantive threshold of unfitness for terminating parental

rights - a unique deprivation generally assumed to be “reserved for cases of severe abuse or neglect,

abandonment or incapacity.” Its myopic focus on expediting a false conception of permanency is

a “direct assault” on this threshold.21

A survey of stretching across 18 different states revealed that judges’ “biggest” concerns

were “shortened timeframes” to terminate parental rights for foster children.22 Judges reported

feeling pressured to grant termination of parental rights in “most or all cases” because of the

ASFA’s “focus on timely achievement of permanency.”23 Because of the ASFA, the “driving

force” of permanency has displaced “sensitivity to and respect for the complications of human

experience.”24 Several judges have disclosed that 12 months is not enough time for “substance-

abusing parents to rehabilitate,” while some judges have “echoed these concerns” for parents with

19 Brooks, Therapeutic Jurisprudence, supra, at 955. 20 3 Leg. Rts. Child. Rev. 2D § 29:11 (2d ed.). 21 Chill, supra, at 463. 22 Raquel Ellis, Ph.D., Karin Malm & Erin Bishop, The Timing of Termination of Parental Rights:

A Balancing Act for Children’s Best Interests. Child Trends Research Brief, Pub. 40, 9 (2009). 23 Id. at 11. 24 Hugh O'Donnell, What's Wrong with the Picture: The Other Side of Representing Parents in

Child Protection Cases, 4 Appalachian J.L. 73, 80 (2005).

Faria 6

“mental health challenges.”25 It seems certain that the ASFA’s fast-tracking timeline exacerbates

the many barriers facing parents in a system stacked against them.

With the awesome power to “shape the historical events” of a case, the state’s ability to

make its child welfare case “almost inevitably dwarfs the parents’ ability to mount a defense.”26

Mediation is not a panacea to the inherent power imbalance characterizing the child welfare

landscape, but it is a way to move these difficult cases in a timely manner by extending the

temporal investment at the initial prevention stage, thus creating more therapeutic consequences.27

Preventive law is “nearly absent from the scene” of child welfare practice.28 Generally,

courts’ use of mediation in child protection cases is reactive, occurring only after a child has been

removed from the home.29 Mediation is used to facilitate a negotiation between parents and

prospective-adoptive parents in the latter stages of a case as a reactive mechanism to develop a

post-adoption agreement, enter an adoption and avoid involuntarily terminating parental rights.30

Autonomy principles, underlying the fundamental foundation of mediation, dissipate in this

paradigm that strong-arms parents into signing off on adoptions, which are often the result of

inadequate or nonexistent preventive efforts.31 Under this framework, the maxim that a client’s

25 Raquel Ellis, Ph.D., et al., supra, at 9. 26 O'Donnell, supra, at 77. 27 Sarah Clark Bowers, Dependency Cases-Litigate or Mediate?, 70 Ala. Law. 428, 429 (2009). 28 Donald N. Duquette, Looking Ahead: A Personal Vision of the Future of Child Welfare Law,

41 U. Mich. J.L. Reform 317, 350 (2007). 29 Catherine Anne Seal, Michael A. Kirtland, Using Mediation in Guardianship Litigation, Colo.

Law 37, 38 (2010). 30 In one study, 35 percent of judges reported an increase in uncontested termination of parental

rights and voluntary relinquishments as a result of increased use of alternative dispute resolution

programs. Raquel Ellis, Ph.D., et al., supra, at 9. 31 Brooks, Adoption Alternatives, supra, at 46-47.

Faria 7

voice is “really the loudest in mediation” is rendered to pure lip service, something less than even

a trite colloquialism as parents are not allowed to really speak until it is time for them to surrender

(i.e. voluntarily terminate their rights) to the overwhelming power of the state.

Literary legal discourse on mediation in child welfare has historically deconstructed the

profound power imbalance between parents and the state.32 More recently, mediation experts have

focused on the trend to mediate child dependency cases. 33 Sharing many similarities, child

dependency and child neglect cases are treated in the same way in some jurisdictions.34 In other

jurisdictions, the distinction between dependency and neglect rests in fault. A child is neglected

when a parent fails to “provide needed food, clothing, shelter, medical care or supervision to the

degree that the child’s health, safety, and well-being are threatened with harm.”35 Whereas a child

is dependent when he or she is without this proper care through no fault of the parent.36

Most states have established alternative dispute resolutions in lieu of litigating dependency

cases.37Attorney, social worker and mediator Sarah Clark Bowers argues the greatest reason for

the increasing use of dependency mediation is that “it works.”38 Agreements are reached on all

pending issues in 60 percent to 80 percent of dependency cases nationwide.39 Partial agreements

are etched out in an additional 10 percent to 20 percent of mediated cases.40 These agreements are

32 Amy Sinden, "Why Won't Mom Cooperate?":a Critique of Informality in Child Welfare

Proceedings, 11 Yale J.L. & Feminism 339, 354 (1999). 33 Bowers, supra, at 429-30. 34 3 Am. Jur. Proof of Facts 2d 265 (Originally published in 1974). 35 Child Welfare Information Gateway, Definitions of Child Abuse and Neglect. Washington, DC:

U.S. Department of Health and Human Services, Children’s Bureau (2014). 36 3 Am. Jur. Proof of Facts 2d 265 (Originally published in 1974). 37 Bowers, supra, at 428. 38 Bowers, supra, at 429-30. 39 Nancy Thoennes, What We Know Now: Findings from Dependency Mediation Research, 47

Fam. Ct. Rev. 21, 29 (2009). 40 Bowers, supra, at 428.

Faria 8

more detailed and better tailored to families’ needs, thereby producing “longer-lasting,” “better

results for children.”41 Some evidence suggests that dependency mediation saves time and money

as these cases are less likely to result in subsequent contested review hearings.42 But, even looking

through a less evaluative, more transformative, lens, documented anecdotal evidence reveal

glimpses into the success of dependency mediation. For instance, one Superior Court judge,

presiding in a jurisdiction that offers dependency mediation, reported that the mediation process

has profoundly changed the legal culture of child protection.43 Agreements reached in dependency

mediation reduce the time that children spend in temporary care.44 But the “benefits [of mediation]

for children and families go far beyond settlements reached.”45

Interventions that feature an agreed-upon plan between families and child welfare agencies

strengthen a child’s chances for a safe and secure future.46 In contrast, forever severing parents’

legal ties to their children is a “drastic measure, fraught with devastating emotional and

psychological consequences for parents and children.” 47 Children benefit from maintaining

important family attachments, even if the attachments are faulty or family members have

significant deficits.48 A focus on maintaining these attachments leads to more therapeutic and

preventive efforts aimed at family preservation or avoiding adversarial litigation.49

41 Hon. Leonard P. Edwards, Mediation in Child Protection Cases, 5 "J. Center for Families, Child.

& Cts." 57, 64-65 (2004). 42 Nancy Thoennes, An evaluation of child protection mediation in five California courts. Family

and Conciliation Courts Review, 35, 184-195 (1997). 43 Edwards, supra, at 63-64. 44 Josefina Muniz Rendon, Children First: A Collaborative Mediation Program, Hous. Law. 22, 23

(2000). 45 Bowers, supra, at 429-30. 46 Bowers, supra, at 428. 47 Brooks, Therapeutic Jurisprudence, supra, at 957. 48 Brooks, Adoption Alternatives, supra, at 47. 49 Brooks, Adoption Alternatives, supra, at 47.

Faria 9

An adversarial approach - predicated on assigning blame - is complicit in the broken

machinery that is the child welfare system. Presuming that child welfare cases “will be litigated –

rather than mediated within the community (a coercion rather than treatment paradigm) – tears at

the thin fabric that holds together many families” and “may actually make successful outcomes for

children more difficult to achieve.”50

A study published by the Child Welfare League of America found that the adversary nature

of involuntary termination of parental rights proceedings and its length “left the children in a limbo

of anxiety and heightened loyalty conflicts in relation to the parents, grief about losing them, and

hostility toward the agency seeking termination.”51 Many children who had been “freed for

adoption” via involuntary termination proceedings “resisted their adoptions and returned to foster

care.”52 The rate of disruption – an adoption process that ends after the child is placed in an

adoptive home and before adoption is legally finalized – can range from 10 percent to 25 percent.53

Essentially, this means that as many as one in four children in an adoptive placement will be

bounced back into foster care.54 This rate of disruption indicates that expediting the unique

deprivation of terminating parental rights has sown the seeds of a “new predicament” that threatens

long-term stability and permanency for children.55

50 Jolene M. Lowry, Family Group Conferences As A Form of Court-Approved Alternative

Dispute Resolution in Child Abuse and Neglect Cases, 31 U. Mich. J.L. Reform 57, 63 (1997). 51 Madelyn Freundlich, Expediting Termination of Parental Rights: Solving A Problem or Sowing

the Seeds of A New Predicament?, 28 Cap. U. L. Rev. 97, 106-07 (1999). 52 Id. 53 Child Welfare Information Gateway, Adoption disruption and dissolution. Washington, DC:

U.S. Department of Health and Human Services, Children’s Bureau (2012). 54 Id. 55 Freundlich, supra, at 110.

Faria 10

Indeed, termination of parental rights still “does not guarantee an adoptive placement.”56

In the United States, 101,977 foster care children had a permanency goal of adoption and/or had a

parent whose rights were terminated, according to the most recent data compiled by The Annie E.

Casey Foundation’s KIDS COUNT project.57 Of these children, 31 percent waited three years or

more for adoption.58 Twenty-three percent of children in foster care languished for two years to 35

months. And an additional 33 percent of children in foster care waited one year or more for

adoption. Just 14 percent waited less than a year for adoption. Although foster care is proposed as

a “temporary solution,” children stay in foster care for an average of two years.59

But characterizing a child’s time in foster care as “waiting” or a “stay” might be misleading.

The average foster care child will be moved from one foster care home to another at least once.60

One in four foster care children will be shuffled among foster care placements at least three times.61

56 Margaret Beyer Wallace, Lifelines to Biological Parents: Their Effect on Termination of

Parental Rights and Permanance, 20 Fam. L.Q. 233, 246 (1986). 57 Children 16 and older with a goal of emancipation and parents whose rights have been

terminated were excluded in this calculation. The Annie E. Casey Foundation National KIDS

COUNT, Child Trends analysis of data from the Adoption and Foster Care Analysis and Reporting

System (AFCARS), made available through the National Data Archive on Child Abuse and

Neglect. 58 Time waited is the last day of the fiscal year minus the date of a child’s most recent entry into

foster care. The Annie E. Casey Foundation National KIDS COUNT Child Trends analysis of data

from the AFCARS, made available through the National Data Archive on Child Abuse and

Neglect. 59 U.S. Department of Health and Human Services, Administration on Children, Youth and

Families. Child Maltreatment 2002. Washington, DC: US Government Printing Office (2005). 60 The UPenn Collaborative on Community Integration, Removal from the Home: Resulting

Trauma, The Temple University Collaborative on Community Inclusion of individuals with

Psychiatric Disabilities 1 (2015). 61 Joseph J. Doyle, Jr., Child protection and child outcomes: Measuring the effects of foster care,

The American Economic Review, 96(5), 1583-1610 (2007).

Faria 11

Nationwide, 35 percent of children in foster care had more than two foster care placements.62

These national figures illustrate that fast-tracking termination of parental rights does not

necessarily produce adoptions, much less achieve permanency.

Molly McGrath Tierney’s directorship work with Baltimore’s Department of Social

Services is “considered a national model.”63 But Tierney called the child welfare agency a “well-

oiled machine that does an outstanding job of taking other people’s children.”64 For Tierney,

dismantling these families has enormous consequences.

“Kids that grow up outside of families – they don’t master the things that can only be

learned in that context, like who to trust, how to love and how to take care of yourself, and

that, frankly, does more damage than the abuse and neglect.”65

Coercive state intervention often results in placing a child in a situation more detrimental

than he or she would be in without the intervention.66 Removing a child from an imperfect home

will not necessarily improve the child’s welfare, but disturbing the familial relationship inherently

62 The Annie E. Casey Foundation National KIDS COUNT. Child Trends analysis of data from

the Adoption and Foster Care Analysis and Reporting System (AFCARS), made available through

the National Data Archive on Child Abuse and Neglect. 63 Medical Kidnap. “Baltimore Child Welfare Director: Foster Care Is A Bad Idea – Kids Belong

in Families.” N.p. (2015), citing Molly McGrath Tierney, Rethinking foster care: Molly McGrath

Tierney at TEDxBaltimore 2014 (2014). 64 Id. 65 Id. 66 Santosky v. Kramer, 455 U.S. 745, 766, 102 S. Ct. 1388, 1401, 71 L. Ed. 2d 599 (1982).

Faria 12

inflicts trauma to the child.67 For this reason, children are generally “raised best in their own

families.”68

Removal “can be just as traumatic” as the harm of an abusive family.69 It can produce

feelings of betrayal, instability, rejection, loss of status and control, and mistrust leading to a range

of psychological issues and personality disorders. 70 The emotional, psychological and

neurobiological effects of the disruption can last a lifetime. 71 72 Foster care produces a host of

anti-therapeutic social outcomes for children, including: high delinquency rates, high teen birth

rates and lower earnings. 73 Through termination of parental rights, children can experience

increased anxiety, self-doubt and an “irreparable sense of loss that can stunt development and lead

to behavioral problems.74 75

67 Marsha Garrison, Child Welfare Decisionmaking: In Search of the Least Drastic Alternative, 75

Geo. L.J. 1745, 1802 (1987). 68 Clare Huntington, Rights Myopia in Child Welfare, 53 UCLA L. Rev. 637, 678-79 (2006). 69 The UPenn Collaborative on Community Integration, supra, 1. 70 The UPenn Collaborative on Community Integration, Removal from the Home: Resulting

Trauma, The Temple University Collaborative on Community Inclusion of individuals with

Psychiatric Disabilities 1-5 (2015), citing: Kerry Schneider & Vicky Phares, Coping with Parental

Loss Because of Termination of Parental Rights, Child Welfare, 84(6), 819-842 (2005); Catherine

R. Lawrence, Elizabeth A. Carlson & Byron Egeland, The Impact of Foster Care on Development,

Development and Psychopathology, 18, 57-76 (2006). 71 Robert Racusin, Peter K. Isquith, Arthur C. Maerlender, Anjana Sengupta & Martha B. Straus,

Psychosocial Treatment of Children in Foster Care: A Review. Community Mental Health Journal

41(2), 199-221 (2005). 72 Delilah Bruskas, Children in Foster Care: a Vulnerable Population at Risk. Journal of Child and

Adolescent Psychiatric Nursing, 21(2), 70-77 (2008). 73The UPenn Collaborative on Community Integration, supra, 1. 74 Judith Silver, Paul DiLorenzo, Margaret Zukoski, Patricia E. Ross, Barbara J. Amster & Diane

Schlegel, Starting Young: Improving the health and developmental outcomes of infants and

toddlers in the child welfare system, Child Welfare 78(1), 148-165 (1999). 75 Wallace, supra, at 246-47.

Faria 13

This article seeks to illustrate how the same values of judicial efficiency and therapeutic

jurisprudence - which have thrusted the ascent of mediation in child access cases as well as

dependency mediation – should galvanize a shift toward mediation as a proactive, alternative

response to filing a child neglect petition.

By incorporating differential and alternative responses, some jurisdictions have already

acknowledged the benefits of approaches less adversarial than traditional investigative

intervention. These approaches recognize the vast differences among alleged maltreatment and

focus on assessing the needs of individual families and responding accordingly with diverse

treatment responses, rather than using litigation’s essentialist machine that purports to eliminate

the vastly different barriers the same way for different families.76

With earlier assessment and intervention, the use of alternative response has saved financial

resources and improved the safety status of children by increasing service provision.77 Families

who received Alternative Response were “less likely to have new child maltreatment reports” than

control group families who were investigated.78 And, although the initial costs of Alternative

Response were greater than traditional Child Protective Services’ interventions, the cost of services

provided and worker time was less, yet more effective in the long term.79 Still, differential and

alternative response programs alone are not enough to revolutionize a short-sighted child welfare

landscape.

The efficiency and effectiveness of these programs suggests that modern child welfare can

and should be improved by further integrating less-adversarial approaches. “All juvenile and

76 Donald N. Duquette, Looking Ahead: A Personal Vision of the Future of Child Welfare Law,

41 U. Mich. J.L. Reform 317, 334-36 (2007). 77 Id. 78 Id. 79 Id.

Faria 14

family court systems should have alternative dispute resolution programs available to the parties

so that trials can be avoided whenever possible,” according to the National Council of Juvenile

and Family Court Judges.80 The Council has “identified mediation as a best practice.”81

Mediation is heralded for the capacity to improve and sustain relationships by holistically

addressing needs beyond the immediate legal issue, the subject of litigation.82 Its ability to deal

with multiple legal and non-legal issues prevents further disputes by promoting understanding.83

Parents who participate in child protection mediation report that they feel mediation helped them

“understand what the case social worker will do” and “understand what they needed to do.”84

For parents who may be facing a child neglect case, mediation clarifies issues, affording

them time and a more meaningful opportunity to address the underlying issues surrounding

potential neglect allegations. Functioning as either an alternative or a precursor to filing a neglect

petition or removing a child, mediation serves as notice to parents, buying them the time to access

the resources their families need and fortifying a meaningful opportunity to be heard.85 Parents

80 Bowers, supra, at 428. 81 Edwards, supra, at 63. 82 Andrea Kupfer Schneider, The Intersection of Therapeutic Jurisprudence, Preventive Law, and

Alternative Dispute Resolution, 5 Psychol. Pub. Pol'y & L. 1084, 1094-5 (1999). 83 Id. 84 Rendon supra, at 23. 85 As a substantive and procedural safeguard, mediation furthers due process. The Fourteenth

Amendment provides that no State shall "deprive any person of life, liberty or property without

due process of law." U.S. Const. amend. XIV, § 1. Due process of law "guarantees more than fair

process." Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258 (1997). It is well

established that the Fourteenth Amendment's Due Process Clause protects parents' “fundamental

liberty interests” in the “care, custody and control of their children.” Troxel v. Granville, 530 U.S.

57, 65, 120 S. Ct. 2054, 2060, 147 L. Ed. 2D 49 (2000). These interests do not evaporate simply

because the parents “have not been model parents or have lost temporary custody of their child to

the state." Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599

(1982); In re Kyle S., 692 A.2d 329, 334 (R.I. 1997). The physical removal of a child from

placement with parents is a drastic state action, extremely interfering with parents "essential" and

Faria 15

report that “unlike court proceedings, mediation enables them to be heard and understood, often

for the only time in the court process.”86 In a survey of five California courts, more than 90 percent

of parents who participated in dependency mediation reported that they had a chance to talk about

the issues, felt others listened to and understood what they had to say, and felt mediation clarified

what they needed to do to have the child welfare agency close their case.87 The open, responsive

forum to ask questions and offer input furthers transparency and accessibility at the initial stage,

making it easier for all participants to understand.88

Through mediation, parents have an opportunity to tell their stories and participate in

planning for their child alongside child advocates and an impartial, well-trained, neutral mediator.

Mediation acknowledges that “families are their own experts, with knowledge and insight into

which solutions will work best for them.”89 It allows the participating parent to proactively explore

alternatives, create options and make decisions, rather than simply being the passive receptacle of

a lawyer’s advice and decision-making.90 In this way, it challenges the hierarchical structure of

traditional family law practice.91 This has important implications for children because parents who

are afforded the opportunity to tell their own story and feel listened to experience greater

satisfaction with the legal process and comply more readily with services.92 They are more likely

"basic" rights to raise their children. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212,

31 L. Ed. 2d 551 (1972). 86 Edwards, supra, at 65. 87 Thoennes, Child protection mediation, supra, at 184-195. 88 Edwards, supra, at 65. 89 Huntington, supra, at 678-79. 90 Tina Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L.J. 1545, 1581-

2 (1991). 91 Id. 92 Christina A. Zawisza, Taking Hold of the Elephant in Child Dependency and Neglect Cases, 17

St. Thomas L. Rev. 531, 539-40 (2005).

Faria 16

to reach an agreement when they feel a part of the resolution of issues affecting their child’s

welfare.93

By empowering parents to share their perspectives, mediation simultaneously affords state

actors a chance to get a deeper understanding of the barriers and obstacles these families face,

which becomes especially critical in neglect cases that so often are rooted in systemic poverty.

Poverty is the single-most important predictor of placement and time spent in foster care.94 “The

public child welfare system often equates poverty with neglect because it is “rooted in the

philosophy of ‘child saving’ – the idea that children should be rescued from the ills of poverty by

taking them away from their parents.”95

“Today’s child welfare system operates as a racist, classist system.” 96 In child welfare

proceedings, minority families are disproportionately overrepresented relative to the wider

minority population.97 For example, black children accounted for 14 percent of the overall child

population, but represented 24 percent of all foster care children in 2013.98

Unlike the average white, middle-class social worker, most parents in the child welfare

system are “poor, uneducated or members of minority groups,” making the proceedings “often

vulnerable to judgments based on cultural or class bias.”99 This reality calls into question the

93 Bowers, supra, at 428. 94 Brooks & Roberts, supra, at 453. 95 Id. 96 Brooks, Adoption Alternatives, supra, at 52. 97 Jane M. Spinak, Adding Value to Families: The Potential of Model Family Courts, Wis. L. Rev.

331, 347 (2002). 98 U.S. Department of Health and Human Services, Administration for Children and Families &

Administration on Children, Youth, and Families, Children’s Bureau, The AFCARS Report:

Preliminary FY 2013 Estimates as of July 2013; U.S. Census Bureau, Annual Estimates of the

Resident Population by Sex, Age, Race, and Hispanic Origin for the United States and States:

April 1, 2010 to July 1, 2013 (2014). 99 Santosky v. Kramer, 455 U.S. 745, 763, 102 S. Ct. 1388, 1399-400, 71 L. Ed. 2d 599 (1982).

Faria 17

legitimacy of using fault to distinguish neglect from dependency as a rationale for adversarial

neglect proceedings. “Biased state intervention in poor and minority families and removal of

children from their homes” are fundamental flaws of the child welfare system.100 Family courts

often exacerbate class and racial disparities by prescribing solutions that fail to address the family’s

problem e.g. expediting adoption as “the medicine for curing all of the system’s ills.”101

Practitioners and scholars agree that the child welfare system must be transformed.

Applying a transformative mediation model in the context of child welfare could transform

relationships as participants shift to responsiveness and “move from weakness to strength.”102 By

trying to mediate at the earliest stage – extending the ASFA timeline, the state shows a

commitment to empower these predominantly low-income families from its initial supportive

response, promoting communication that creates “positive interactional shifts,” 103 instead of

imposing familial trauma by hauling parents into the adversarial court process and then trying to

establish a “cooperative” relationship predicated on a false premise of equal power.104 This fosters

trust and renews collective public faith that state agencies and courts can produce just outcomes,

protecting the integrity of the family unit and the fundamental right to parent. But it requires a

fundamental shift toward a sensible, proactive family-centered service orientation – designed to

100 Susan L. Brooks & Dorothy E. Roberts, Social Justice and Family Court Reform, 40 Fam. Ct.

Rev. 453, 454-55 (2002). 101 Id. 102 Robert A. Baruch Bush and Sally Ganong Pope, Changing the Quality of Conflict Interaction:

The Principles and Practice of Transformative Mediation, 3 Pepp. Disp. Resol. L.J. 67, 80-4

(2002). 103 Id. 104 Sinden, supra, at 354.

Faria 18

address the initial circumstances that led to state involvement, rather than continuing to react by

imposing a “demented obstacle course” for low-income, minority families with little resources.105

Vulnerable families “need to be able to access the full range of services as early as

possible.”106 But these families have very little support to help them prevent involvement in the

child welfare system and remedy the underlying causes triggering intervention.107 Agency risk and

safety assessments in 22 out of 35 states did not capture the underlying family problems, according

to a study conducted by the U.S. Department of Health and Human Services Child and Family

Service.108 It is no wonder that a “revolving door” exists in child welfare practice as about one-

third of cases are repeatedly referred to Child Protective Services.109 “Too often the underlying

105 In analogizing the child welfare system to a “demented obstacle course,” Hugh O’ Donnell

wrote:

“The uphill course must be completed by a specified time or else: whether the runner is on

crutches, carrying a heavy backpack or un-encumbered. The number and nature of the

obstacles is subject to daily change, and may or may not have anything to do with the

original problem that forced the runner onto the course. All along the way there are people

screaming at the runner that he or she has no one but himself to blame for the situation.

When a misstep is made or an obstacle is not negotiated with requisite grace or enthusiasm,

the blamers gather to discuss if new obstacles are called for or whether the runner must

start over. Even if none are added, notes are taken, reports are generated and salaries and

fees are paid. The chorus of blaming is incessant, except of course, when the course

managers pause at seminars, continuing legal education classes and bar meetings to tell

themselves and the world of their strong commitment to protecting the weak and the

vulnerable.” Hugh O'Donnell, What's Wrong with the Picture: The Other Side of

Representing Parents in Child Protection Cases, 4 Appalachian J.L. 73, 87 (2005).

106 Brooks & Roberts, supra, at 455. 107 Brooks, Adoption Alternatives, supra, at 46-47. 108 Duquette, Looking Ahead: A Personal Vision of the Future of Child Welfare Law, 41 U. Mich.

J.L. Reform 317, 334-36 (2007). 109 Id.

Faria 19

problems, strengths and weaknesses are not understood before a treatment response is

recommended.”110

Mediation provides a setting wherein the input and strengths of participants develops

emergent knowledge, a synergy of creative solutions. 111 A strength-based model, mediation

“resonates with the idea, long-espoused by social workers, ‘that lasting solutions to problems are

ones that grow out of, or can fit with, the knowledge, experiences, and desires of the people most

effected.’”112 Put more simply, mediation empowers families to “look within to find solutions.”113

Greater insight into the lives of these families – garnered via mediation - empowers and more

properly situates front-line social case workers to assess families’ needs and tailor appropriate

services. Through mediation, family service plans and the processes of accessing various

community resources can be meaningfully outlined with greater specificity and detail.114

With earlier, less-invasive, better-tailored intervention, the mediation process could help

to curb defensive social work, i.e. the tendency of social case workers to “base removal decisions

on fear – fear of job discipline, fear of civil (and even criminal) liability, and especially fear of

adverse publicity,” the source of unnecessary removals or “foster care panics.”115 116

110 Id. 111 Bowers, supra, at 428. 112 Huntington, supra, at 678-79. 113 Id. 114 Bowers, supra, at 428. 115 Chill, supra, at 459. 116 Foster care panics refer to the “huge, sudden increases in (foster care) placements that follow

intensive media coverage of the death of a child who was known to the system.” Richard Wexler,

Take the Child and Run: Tales from the Age of ASFA, 36 New Eng. L. Rev. 129, 146 (2001).

Faria 20

As an intervention that replaces or delays initial removal, mediation nurtures children’s

rights not to be removed from daily intimate association with parents. It increases the chances that

children will be raised in stable, enduring family units by the parents who brought them into this

world, particularly in light of the sequentiality effect’s (i.e. the self-reinforcing, status quo bias

“endemic to human decision-making”) “considerable” impact on child protective proceedings.117

118 This serves the strong public policy interest in preventing unnecessary removal and satisfies

the parens patriae interest in preserving natural familial bonds and continuity of childcare.119

Proposed Mediation Model

The long-established nexus between poverty and child neglect makes these cases ripe for

mediation, which should be the primary avenue for handling an allegation of child neglect. Instead

of a Child Protective Services’ investigation leading to the state’s child welfare agency filing a

neglect petition with the court or removing a child from the home, the child welfare agency should

117 Peggy Cooper Davis & Gautam Barua, Custodial Choices for Children at Risk: Bias,

Sequentiality, and the Law, 2 U. Chi. L. Sch. Roundtable 139, 146-47 (1995). 118 The “sequentiality effect” (the idea that interim decisions become self-reinforcing) is

reinforced by the child development principle that custodial change becomes inherently and

increasingly detrimental as the existing custodial arrangement becomes more longstanding. In

the current child welfare landscape, this means that a child should remain in the foster care

placement, regardless of whether the child should have been placed there initially. By choosing

not to remove in the initial response, this decision can too become self-reinforcing and solidify

the integrity of the family unit. Other scholars have described this as a “tracking” phenomenon

whereby children who are not with their parents at the start of a child protective proceeding are

likely to remain at home, but those removed initially are likely to remain in state custody for a

long time. Paul Chill, Burden of Proof Begone the Pernicious Effect of Emergency Removal in

Child Protective Proceedings, 41 Fam. Ct. Rev. 457, 460-61 (2003). 119 Theo Liebmann, What's Missing from Foster Care Reform? The Need for Comprehensive,

Realistic, and Compassionate Removal Standards, 28 Hamline J. Pub. L. & Pol'y 141, 160-61

(2006).

Faria 21

request that parents participate in mediation. A parent can either volunteer or refuse to attend the

mediation. By refusing, the parent “rolls the dice,” taking his or her chances in a court of law as

the child welfare agency can then file a petition.

Participants in mediation will have an opportunity to tailor a specific agreement that

incorporates the process for accessing certain applicable services and community-based resources,

including: drug treatment, parenting classes, housing assistance, and counseling. Within the

agreement, participants can sketch out the timing and location of various appointments and visits

in light of public transportation, employment and other scheduling concerns. More than just a

schedule or checklist, the mediated agreement can also address other “disparate but interrelated

issues within a case” e.g. individualized education programs, immigration status, public benefits

barriers, substance abuse, domestic violence and mental health issues.120

Developing a holistic agreement together allows all participants a chance to see one another

as whole persons with strengths and challenges. Mediation may not result in an agreement, but the

foundation of the relationship between parents and the child welfare agency is better informed

through the voluntary mediation process.

If the participants create an agreement in mediation, but the parent later continues to act in

a way seriously detrimental to the child (reneging the agreement), then the department can file a

child neglect petition. If the mediation does not result in an agreement, then the child welfare

agency can still file a petition. While this replicates a power imbalance that exists in the courtroom,

the mediation process still benefits families by notifying parents, buying them some time to access

resources, speak with legal counsel, and make arrangements to remove the barriers that led to state

120 Murphy and Rubinson, Family Mediation: Theory and Practice 76 (2d ed. 2015).

Faria 22

involvement. This preserves a more meaningful sense of due process, preventing issues from

multiplying and escalating to removal, thereby furthering the best interests of children.

Taking place within the “shadow of the law,” 121 “mediation works best when each party

is fully advised of her legal rights.” 122 A process that features attorneys protecting parents’

fundamental liberty interests is crucial to the success of mediation – whether that is defined in

purely pragmatic, evaluative ways or more abstract transformative, relationship-centered terms.

As one professor wrote, “Having lawyers present at the mediation, and encouraging mediators to

explore the law with (parents) makes it more likely that the vulnerable will gain whatever

advantage the law allows.”123 This is particularly critical in child welfare given the inherent power

imbalance between participants. Even, or perhaps especially in the less-adversarial context of

mediation, parents and children “need to know and understand their rights and be prepared to resist

an overreaching social agency when appropriate.”124

A mediation that promotes the best interests of children allows parents children to

participate and mandates that they each have an attorney who will advocate for their expressed

interests during the mediation process. In planning for a child’s future, it is critical that a “child’s

point of view be understood and given great weight.”125 To mediate without the presence of the

child’s voice – directly or indirectly - is to deafen the capacity of child welfare mediation to truly

serve the best interests of children.

121 Robert Mnookin and Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of

Divorce, Yale Law Journal 88, 968 (1979). 122 Linda D. Elrod, Child Custody Practice and Procedure § 1608 (2004). 123 Stephen N. Subrin, A Traditionalist Looks at Mediation: It’s Here to Stay and Much Better

Than I Thought, 3 Nev. L.J. 196, 221 (2002/2003). 124 Duquette, supra, at 350. 125 Bowers, supra, at 428.

Faria 23

Similarly, a process that solely includes attorneys and families mutes a systematic expertise

in community-based social welfare programs. A social work perspective is necessary to effectively

mediate and address the underlying issues of child neglect. Courts have found that it is

unreasonable to rely wholly on a family who, despite being experts in their familial dynamics, may

“lack the expertise and perspective (to) diagnose their own problems and then conjure up effective

treatment strategies.”126 This common-sense acknowledgement is sufficient to justify the presence

of a social case worker in child welfare mediation.

Challenges

Confidentiality in mediation enables participants to “express themselves without the fear

that what they say will be later used against them in a court proceeding.”127 The open dialogue

“encourages parties to discuss and disclose anything that would facilitate the resolution of

controversy,” sharing circumstances and possibilities to generate more options for resolving

underlying issues.128 Generally, confidentiality does not extend to statements or allegations of

child abuse because of the strong public policy interest to protect children from harm. The nature

of a child welfare case makes it more than likely that these concerns about confidentiality will

arise. Like dependency mediation, a child neglect mediation may be best served by “allowing an

op-out of the confidentiality requirement,” but this op-out must be thoroughly explained with clear

guidelines at the initial mediation introduction.129

126 In re Natalya C., 946 A.2d 198, 204 (R.I. 2008). 127 Bowers, supra, at 428. 128 Robert Rubinson, Client Counseling, Mediation, and Alternative Narratives of Dispute

Resolution, 10 Clinical L. Rev. 833, 853 (2004). 129 Bowers, supra, at 428.

Faria 24

The primary drawback to mediating child neglect cases centers around the inherent power

imbalance between parents and the state. In the mediation context, this power imbalance threatens

family empowerment, which requires that families “have the freedom to make their own decisions

and choices.”130 Still, this power imbalance is also vividly pronounced in the courtroom where

disempowerment through disenfranchisement (i.e. fast-tracking termination of parental rights)

remains the undercurrent of child welfare law. The longstanding tradition of an adversarial court

process has not mitigated concerns about coercion or lack of autonomy, empowerment or due

process in child welfare. Perhaps it is time that the child welfare system mediate to mitigate the

anti-therapeutic consequences associated with the traditional practice of child protection. As some

social case workers have said, “Mediation (unlike trial) has never made things worse.” 131

Mediation offers significant benefits as an early-intervention alternative to a litigation process

geared to sever natural family bonds. The legitimate space of mediation empowers parents to offer

valuable insights, create solutions, make decisions, tell their stories and access the resources their

families need.

In the arena of child welfare, mediation makes the goal of permanency real. It’s a precise

intervention that does not irreparably harm the children who have allegedly been harmed by

neglect – or by merely growing up poor. For impoverished, struggling parents, it offers a sense of

dignity and societal investment in their families’ lives.132

130 Huntington, supra, at 678-79. 131 Thoennes, Child protection mediation, supra, at 184-195. 132 Bowers, supra, at 428.

Faria 25

Conclusion

The adversarial court process is complicit in the broken machinery of the child welfare

system that makes poverty synonymous with child neglect, and then fast-tracks termination of

parental rights. Removing children from families, placing them in foster care and terminating their

parents’ rights traumatizes children and, in the aggregate, fails to establish permanency, the

purported goal of the modern child welfare system. Therapeutic jurisprudence should galvanize a

shift in child welfare law that makes mediation a proactive, alternative response to filing a child

neglect petition. An effective child neglect mediation features parents, a social case workers,

attorneys for parents, children and the child welfare agency, and, if they wish to participate,

children. In child welfare, the transformative mediation process provides a space to approach

issues holistically, develop emergent knowledge and improve relationships to further a child’s best

interests. Mediation will not eliminate the inherent power imbalance parents and the state, but it

may create “positive interactional shifts,” more properly situate social case workers to assess

families’ needs and tailor appropriate services, and deliver greater compliance by building on

families’ strengths and providing ample opportunity for specific remedy and prevention.133

Adversary child welfare proceedings require large time blocks and, often, multiple

continuances, but early-intervention mediation significantly saves court resources, while

conserving the time of judges, social workers and attorneys by buying poor families time to access

the resources their families need. 134 Family courts cannot delay family-friendly reform that

empowers the voices of resilient families and promotes the emotional and psychological well-

133 Bush & Pope, supra, at 83-84. 134 Bowers, supra, at 428.

Faria 26

being of children by temporally investing in them at the initial stage. The time to mediate is now.

It’s time to change child welfare.