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May 28th, 2012 by Robert Franklin, Esq.
Michigan stands ready to significantly reduce the power of its child welfare agency to take children from parents.  And it’s all because of Mike’s Hard Lemonade.  Read about it here (Kalamazoo Gazette, 5/22/12).

The Michigan House passed its version of a bill the Senate passed earlier.  The House vote was 106 – 1.

Current Michigan law permits the emergency removal of children whose surroundings endanger their health, morals or welfare. The new bill would raise that threshold to children who are at substantial risk of harm or in surroundings that present an imminent risk of harm.

In other words, if the bill is signed into law, child welfare authorities will have a much harder time justifying the taking of children into foster care.  They’ll have to show that parents pose a “substantial risk of harm,” instead of simply showing a living situation that endangers the child’s health, morals or welfare.  ”Endangering a child’s morals” looks like it can mean pretty near anything.

Discontent with CPS in Michigan has been building for some time.  Only last year, a Detroit Woman, Marianne Godboldo, lost her daughter for weeks for the sole reason that CPS differed with her about whether the girl should be on the powerful psychotropic medication Risperdal.  Not only did CPS obtain a warrant to take the child without ever informing Godboldo, but it got the order signed not by a judge but by a clerk.  That mind-boggling absence of due process was followed by CPS’s enlisting the police and SWAT team to break into Godboldo’s apartment and make off with the terrified girl.  One final indignity: once in their care, mental health professionals decided that the girl didn’t need the medication after all.  Godboldo had been right all along.

But cases like that weren’t enough to get the state legislature’s attention.  No, it took Mike’s Hard Lemonade to do that.

Back in 2008, a dad took his son to a Detroit Tigers baseball game.  At some point the father decided to get the kid something to drink and, seeing he word “lemonade” on a bottle, bought one for his son.  The man was unfamiliar with Mike’s Hard Lemonade and didn’t know it contained alcohol.  The vendor from whom he bought it had no sign or other indication that it contained alcohol and when he was tested, the child’s blood showed no presence of alcohol.  Nevertheless, for his innocent mistake, CPS took the man’s son into care for two days.

And that’s what spurred the legislature to act.

My guess is that the new law, assuming it becomes one, won’t do much to slow the rate of taking children into foster care.  If caseworkers now believe that there’s a danger to the health, welfare or morals of a child, it’s not much of a leap of faith on their part to conclude that the danger is “significant.”  I’ve long thought that one of the major motivating factors about child welfare agencies is the exercise of state power for its own sake.  The Godboldo case fairly screams that.  I’m sure most caseworkers don’t view their jobs that way, but as an institution, CPS routinely wields the heavy hand of the state.  There are simply too many parents who have concluded some version of “these people do what they want to do and no one can stop them,” for me to believe that CPS truly acts in the best interests of children.  Of course they do sometimes, but state power has a way of taking on a life of its own, and in the case of child welfare agencies that has a number of different faces.

One of those faces is the time-honored bureaucratic motivation of CYA.  It’s always safer for a caseworker to take a child than not to.  If she does, she’s appearing concerned and “proactive;” if she doesn’t, there’s a chance the child will be harmed and then guess whose job will be on the line.  We saw that in the Houston case of a family living in a warehouse.  They had all the comforts of home except running water which was available a few steps away.  Still, the children were taken into care and the caseworker admitted that if she hadn’t done so, her supervisor would not have been amused.

Then there’s the exercise of power for its own sake as in the Godboldo case.  In those cases, CPS cops the attitude that it’s above the law, as indeed it is.  After all, who else can go to court and obtain an order to take a parent’s child with no hearing and without even the inconvenience of a judge’s signature?  That’s raw power in action.  Doubtless District Attorneys look on with envy.

That same type of dynamic is at work in cases in which a parent demands that CPS produce a warrant to enter the house, or asserts the right to an attorney.  CPS is a state actor and therefore, the parents with whom it deals have those rights.  But if they assert them, they’re often tagged by CPS for special treatment, i.e. whatever chance there was of the child being taken, it just increased dramatically.

So when the Michigan legislature acts to clip CPS’s wings, it may not make a lot of difference in the agency’s actual behavior.  But it may also be a harbinger of things to come.  Clearly, the agency and the many parents who’ve complained about it have gotten the attention of elected officials who’ve proven themselves willing to take steps to control the agency.  Whatever the wording of the new statute, a message has been delivered.

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