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NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

May 21, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

In yesterday’s post, I mentioned that the Meitivs, the Maryland parents whose fight with Child Protective Services has been so much in the news, intend to sue the agency. Volokh Conspiracy writer and law professor Ilya Somin said that he thought their case would be an easy one to win and I heartily concurred. After all, the law of the land as articulated by the United States Supreme Court clearly says that parents’ decision-making regarding their children may not be interfered with by the state absent a showing of unfitness. Since the Meitivs look to be the best of parents, they should be able to prove liability on the part of CPS easily. That part of the case should be disposed of on a Motion for Summary Judgment.

Here’s an example of what I and Somin were talking about. It’s a case out of Nebraska in which a caseworker with the local Children and Family Services arm-twisted a father into giving up his parental rights to his daughter, despite there being no evidence that he was in any way unfit to care for her. That got him a judgment for about $130,000 and the child one for over $200,000. And theirs was a much more difficult case than the Meitivs or in fact most parents whose rights have been violated by CPS.

Moving on from lawsuits, here’s another piece by Somin in which he discusses, not the law, but how matters between parents and CPS often work out in practice (Washington Post, 4/21/15). As I said yesterday, it’s a long way between what happens in juvenile courts and what nine black-robed justices believe the law to be.

Somin quotes lawyer Sam Wright at his website tellingly called Above the Law:

[T]he Fourteenth Amendment protects the rights of parents to raise their children as they see fit and that it also, in the words of Justice O’Connor’s plurality opinion in Troxel v. Granville, creates a “presumption that fit parents act in the best interests of their children.”

But the reality facing most parents in court is that that “presumption” isn’t actually a thing. Take the experience documented in a well-publicized essay on Salon last year: the author left her four-year-old unattended in a car for a few minutes on a mild day, the police were called, she found herself charged with a crime... [Her lawyer] warned her that “juvenile courts are notorious for erring on the side of protecting the child” and suggested that fighting the case might lead her to lose her child. Faced with that possibility she, of course, folded. Anyone would…

And that’s been my experience as an advocate too. When I worked for a legal aid organization, one of my tasks was to represent parents in child welfare proceedings. No one in those sad, sequestered courtrooms cited Supreme Court cases; everyone just argued over what was in the best interest of the child...

So parents, be cautious: yes, there’s Supreme Court precedent on your side, but if you find yourself in court then the system’s conception of the “best interests of the child” will likely overrule yours.

Stated another way, “the system” routinely violates the law. It does so for one simple reason — it knows parents are afraid. Of course they are. The single most terrifying thing to just about any parent is the prospect of losing his/her kids. They’ll do just about anything to avoid that. And every single person in “the system,” i.e. judges, caseworkers, lawyers, supervisors, etc., knows it too. That’s what allows the system to violate the law of the land with all but complete impunity.

Here’s what else they know: litigation takes time, lots of time. And a caseworker bent on revenge against parents who had the audacity to assert their rights can easily take a child into foster care or, at the very least, make their lives hell for doing so. If it takes three years to pursue the case, what has that time done to their relationship with their children?

And what if they lose? After all, most cases aren’t like the Meitivs’. Theirs is essentially a slam-dunk win. They’re excellent parents who are highly educated and represented by fine lawyers. They know how to assert their rights. Plus, and perhaps more importantly, their case has been before the public in a wide array of forums for months now. That means CPS would be hard pressed to, all of a sudden, decide to take their children from them. Doing so would just be adding to the Meitivs’ damages.

But most parents abused by CPS have neither the Meitivs’ education nor their money. Plus, in most cases, CPS has at least something on which to hang a charge of parental neglect or abuse. Did Mom leave little Andy or Jenny alone in the house for an hour or two? Did the tyke get out and wander a bit? Is there a suspicious bruise? None of that indicates unfitness, but who wants to roll those dice in court when the stakes are so high? Better to “work with” CPS, take a parenting class, have an open file with the agency and hope nothing more happens.

As with the legal system generally, CPS tends to target the poor and less educated among us. Indeed, “parenting while poor” is often the only infraction CPS needs to take children into care.

Several years ago I wrote about a family in Houston that was temporarily down on its luck. So they moved into a mini-warehouse. It was a 10,000 square foot mini-warehouse that was air-conditioned. The kids had their own rooms and Internet access. The parents rigged up a makeshift kitchen. What the setup didn’t have was running water. That they got across the driveway where there were sanitary facilities. The children hadn’t been harmed in any way and were healthy and happy enough. But CPS took them into foster care anyway, for no apparent reason.

Those parents were perfectly fit, but were in no way able to take on the agency legally. And agency caseworkers and supervisors knew it. They acted with impunity.

Still, lawyers represent parents in juvenile court every day. And what Wright says is true; the issue in those hearings is always someone’s interpretation of the best interests of the child and not the legal issue of whether the state has any business interfering in the family in the first place. Of course many times the state has every right to do so. Many parents have committed the worst abuse or simply proven themselves to be incompetent at parenting. But many times there’s no evidence of unfitness, and yet there the parents are, fighting to keep possession of their children.

The point being that those lawyers need to raise those constitutional issues. If they don’t, who will? And, while the “best interests of the child” can be a murky area of the law, parental unfitness is a lot less so. Those lawyers need to let the court know that the threshold issue in the case is unfitness. Has the state proven that point? If not, then any issue of taking the kids into care should be dismissed.

As Somin says,

If the issue were raised in a sufficiently egregious case, and effectively pursued by determined parents with strong legal representation, the chances of ultimate victory might well be good. And such a victory could create an important precedent that helps deter similar official misconduct in the future, especially if the government agency is forced to pay damages as well as cease its harassment of the parents.

That of course is a pretty good description of the Meitivs and their lawsuit against Montgomery County, MD Child Protective Services. And let’s not forget that, if a child protective agency is acting against fit parents, they should be able to get a temporary restraining order against the state to stop it. That would give the parents the security they need to continue the litigation free of any fear of retribution.

For now though, it’s best to remember that what the law is and what the courts and state agencies do can be two very different things. And parents who stand to lose their kids at the whim of a judge or caseworker understandably proceed with caution.

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