When the State Takes A Child

The most extreme authority Vermonters have accorded their government is the taking of a human life. This ended in 1972, 18 years after the last Vermonter was electrocuted in Windsor Prison.

The second most extreme authority is the taking of children from their parents, either through the state assuming custody or the termination of parental rights(TPR).

There are unquestionably cases in which the removal of a child from its parent or family can be justified – physical, sexual or emotional abuse, neglect, abandonment, or addiction-compromised parenting are stark examples – but the State must be held accountable for proving the need for removal and an absence of other possible non-State placements.

The process in Vermont for both CHINS petitions (a petition filed in court requesting the court to review circumstances and determine into whose custody the child should be placed) and TPRs (Terminations of Parental Rights, where parents permanently lose custody) are deeply flawed. Most of those within the system know it, but there have been too few serious efforts to quantify the injustices and amend them with a new and more accessible, transparent, and accountable process.

I once was blessed to hear Marian Wright Edelman, founder of the Children’s Defense Fund, speak. A comment she made has stayed with me for 30 years: “We are willing to spend the least amount of money to keep a kid at home, more to put him in a foster home, and the most to institutionalize him.”

Like a slinky descending a staircase, the troubled partnership between the Vermont Department of Children and Families (DCF), the States Attorneysthe Defender General System, the Attorney General and the Vermont Superior Courts just keeps rolling along with little in the way of accountability, transparency, or oversight.

In 2019, DCF’s total budget was $126 million. This covered some 20,500 unspecified calls (abuse reports or queries) made to the DCF hotline, resulting in 2682 assessments and 3405 investigations which led to 1239 children in custody, (481 in “family support” and 754 in “conditional custody). Of those, 361 were removed from their families and placed with relatives or “known connections.”

The current system has been described as “organized chaos” by many participants. “The sum of the parts is greater than the whole,” one observer noted. The roster of participants is expansive and costly: DCF workers, prosecutors, appointed attorneys for parents and children (one each for the child and parent(s), a Guardian ad Litem, sometimes an Assistant Attorney General, and the Family Court hearing judges. The number of participants alone makes the “system” ripe for multiple continuances due to absences, with each continuance resulting in an average delay of three months (Kalfus Report).

The process begins with a report of possible abuse or neglect, which can be made by anyone and for any reason.  Reports are reviewed at local DCF offices and initiate either an assessment or an investigation. If it appears that abuse or neglect might have occurred in the estimation of the worker and supervisor, reports are then referred to county prosecutors who bring charges against the family.

Thus begins a judicial process that can take years and cost tens or hundreds of thousands of dollars.

The Defender General’s Office maintains a bevy of lawyers to represent children and parents but is chronically underfunded and struggles to provide effective legal services. One lawyer may have as many as 100 cases, even as the American Bar Association recommends a case load of no more than 60.

To do justice to the complexities of each case, attorneys are expected to have a detailed grasp of case facts and family dynamics for each client. But with these caseloads, there’s precious little time to spend per case.

Appointed attorneys frequently recommend that the family at risk of losing a child simply concur with DCF findings and seek a plea deal. But there’s ample evidence that this often results in the loss of custody or a prolonged legal engagement regardless of whether there was actually abuse or neglect.

Turnover further complicates the process, with some parents having two to five different attorneys over time, and meeting them only minutes before a hearing.

One veteran Family Court judge reports that most defending attorneys in his court have never met the defendant or read the investigative report prior to Emergency Care or Temporary Care hearings (which often determine the child’s custody) and, when asked to then meet with clients or to vigorously contest the charges, simply refuse or quit.

There are also cultural causes for systemic failure that serve no one well. Throughout the system, there’s an overriding, and understandable, fear of being responsible for injury to a child, which could manifest itself in headlines, investigations, and demands for firings, all of which militate in favor of painting the worst possible picture of the family by DCF investigators. And families can only request the investigative reports through their attorneys, some of whom are told not to share them with families to minimize any future litigation against DCF.

Another pervasive issue is socio-economic: the average DCF investigator is young, middle class, and college-educated. When such a person enters a home with overwhelming evidence of poverty, they may be ignorant of the underlying conditions that lead to a sink full of dirty dishes, such as a broken hot water heater, an empty fridge, no heat etc..) Their emotional response to seeing such signs of abject poverty, in spite of training to the contrary, may well influence their reporting.

The final problem is simply political and process inertia. Even as many acknowledge privately that the expensive and unwieldy system is broken and serves neither children nor families well, there’s little motivation to change it.

Change must come from the legislature. An imminent bill currently in draft (Child and Parent Representation Working Group) sponsored by Representatives Tiff Bluemle, Gabrielle Stebbins and Senators Kesha Ram and Dick McCormack aims to address the problem with new – and due – process for all parties: the parent, the child, and the State.

The Federal Children’s Bureau has just made available new funding for states in the form of a 50/50 match under Title IV E of the Social Security Act with which to reform the system. Such funding (the Working Group is to determine the amount) could enable a redesign of the current process, improving outcomes while significantly lowering the cost to Vermont taxpayers.

Given the traumatic impact of child removals, Vermonters should insist that the current system be objectively reviewed and redesigned for fairness, accountability, and cost-efficiency, and with greater consideration for the interests of both the child and parents.

These funds could enable a redesign that reduces cost in time, family trauma, and general fund resources and leads to needed reforms and more effective upstream investment in reducing poverty, mental health crises, and addiction, all triggers to child removals.

While not as horrific as taking the life of an innocent person, the unwarranted removal of a child from their parents can lead to tragic impacts later in life. Let’s get this right for our children and families, the well-being of which is the stated mission of DCF and our Family Court system.