[Hadley2]

Originally Posted by Lynard1210

...once a child is with a relative and/or nonrelative by legal custody, they can close the case.

That is the crime--and it does violate federal law--against children that I would really, really like to stop.

I'm sure you mean well, but except in the case of a MUCH older child who has a statutory right to be heard in court, I still vehemently disagree with you. If you are a gal who is advising social services or dealing with relatives, I really hope you listen and understand what I'm going to say here. I'm afraid you've hit my hot button, I'm sorry to come on so strong and a little disorganized, but here goes.

First, I'd like to say that I am pretty sure there is no such thing as "permanent" or "temporary" legal custody or guardianship. There is legal custody and/or guardianship; whether it turns out to be "permanent" or "temporary" depends on the players and the courts that get involved. This was admitted to me by the social services attorney--the cw kept talking about "permanent legal custody" and how legal custody is "considered permanent" but the fact that social services or a particular judge intends for a particular order to be permanent carries no actual legal weight. Any legal custody order can be challenged at any time--by other relatives or others with standing as well as the parents. Anyone taking on legal custody of a child is opening themselves to lawsuits from many quarters.

Second, in some states, including mine, there is no such thing as legal custody without parental rights or rights of guardianship. It simply does not exist. A legal custody order from another state does not suffice for even the most mundane things--a tooth extraction, a sports team registration, school registration, etc. School districts, hospitals, and others want the signature of "parent or guardian"--"custodian" doesn't cut it. The sending state for our niece learned this firsthand when a hospital here did not want to accept its consent for surgery.

Third, the definition of "legal custody" in most state law does not meet the higher standard set in the federal definition of "guardianship" as an acceptable lower priority disposition. Therefore, "legal custody" is often NOT a disposition that meets the federal requirements set forth in Title IV-E legislation. Transferring legal custody to a relative in those cases is a direct violation of federal law.

Fourth--This idea of transferring legal custody to a relative serves only to save the state a buck, it not only does not help children, it injures them.

Too many social service agencies play on relatives' misplaced fears and concerns about "the system" and wanting to "get the child out of the system" in order to dump open custody cases on private citizens while, at the same time, often cutting the child off from the services that the child needs and that would be provided if the child were foster or foster-to-adopt. The foster case may be "closed" but the custody case certainly is not--although all the evidence related to it is sealed and unavailable to the new parties. Our state sees this a lot in ICPC cases and deems it a violation of federal law and our state law.

I do not believe agencies do this to help families or children. That is a completely empty and false pretense.

Transferring legal custody to a relative is NEVER the only way to close a case or uphold a child's right to be raised by family. That just simply is not true. Families CAN foster their kin while the system works to protect them, their rights, and their parents' right to due process. Families CAN adopt their kin when reunification is eliminated as a goal. By federal law and the laws of 45 states, three territories, and the DC, adoption is the next-priority goal. Guardianship, not legal custody, comes next. Legal custody by itself is not an allowed disposition under any of these laws.

If the state can't make a case for TPR, then it has no basis for denying reunification. If the state has a case for TPR, then it has no excuse for not upholding the child's best interest in permanency by adoption. States that try to have it both ways--deny RU to the parents and TPR to the child--are violating federal law and most likely the laws of their own states if they receive Title IV-E funds.

No, cases are closed when social services does its job and protects children while providing due process for their parents. Dumping an open custody case on private citizens to "close" a foster care case only inflicts further harm on the child and violates both federal and state law.

I believe those simple truths are ignored to save a buck, nothing else.

"Getting the child out of 'the system'" should NEVER EVER be anyone's goal. The child's safety is paramount--that is in federal law and every state law; all goals must serve the child's best interest.

"The system" is not the bogey man to be feared. "The system" is there to protect the child and provide for the child's needs, including the need for permanency. There is no child- or family-based need to short-circuit due process for the parents and sacrifice children's safety and rights to permanency. The only reason to do those things is, again, to save a buck--certainly NOT to help families which get skewered legally and financially by such gamesmanship and sometimes outright lies.

Another argument that it is more family-friendly to not terminate parental rights, etc., is equally bogus and disingenuous. Nothing could be further from the truth. Without clear legal boundaries, families are literally forced into adversarial roles legally, guaranteeing legal and emotional strife where they could have been healing and some degree of harmony or at least acceptance in the child's life.

When custody transfers to the relative and the "case is closed," there is no case plan for the parents, no services for the parents, no case plan or services for the child, no path to permanency for the child--only a path to endless costly litigation for the child and the families and either sky-high medical and therapy bills or neglect of medical and mental health needs because insurance, even state-based insurance, just doesn't, very often, cover what these kids need.

Even if the parents never again challenge the "custodians," even if the "custodians'" insurance covers the child needs, every child deserves far better than to grow up with a "custodian." Children are not zoo animals, they need more than "custodians" and "caretakers"--they need a parent(s), a strong core sense of self rooted in a safe and legally recognized and secure family.

There are cases where a child is so severely in need of services that family placement of any kind--related or not--is not safe for the child or the resource home. That is where long-term foster care and appla come in. Even in those cases, though, parental rights are terminated so that the child's guardian, usually the state, has the freedom and authority to make best-interest decisions for the child.

But when a child who should have either been reunited with his parents or adopted by family or others is just tossed out by social services through a transfer of custody, many families give up and just give the child back to the parents. The DSS attorney in our child's case actually ENCOURAGED us to do so "two or three years from now, you know, if they get themselves together, you could give her back." He was trying to tout the "benefits" of taking legal custody to us by saying we could always just give her back to the parents! WHAT? As if her identity, her life, her development, her humanity, her safety--those things don't count? She's just a "thing" to be given back whenever we feel like it?

But--transfer custody. To close a case. To save a buck. To get the kid and the kids' costs out of local jurisdiction. I know for a fact that was social services' motivation in our case. Never mind why there was a case in the first place. Never mind that leaving parental rights intact endangers the child. Never mind that the child is a human being. Toss her around like a Yankee swap item and save the state some money.

Agencies that do this also sometimes RU with a bus ticket. If there is no family willing to take custody alone, they will RU the child with a strong suggestion to the parents to leave the county or district.

The people involved are probably not evil. They are probably trying to do social triage, hoarding their resources for the worst cases, trying to make do with not enough. Understandable in my view, but not OK. I am the kind of person who says that if you don't have what you need to do the job, push back until you do.

Anyway, though, your example of the mother in college and the grandmother raising the child makes my point re adults' viewing children as things, not people, even in the private sector. That just simply is not a good situation for the child, imo. Absent parents are not parenting--they are telling their children that the children are not worthy enough to actually parent. That they are things to be set aside when parenting is inconvenient.

Children are human beings. They are not cans of beans a mother can put on the shelf while she goes out to do something else and considers her "options." Children don't have "options"--they grow up no matter what. The child doesn't and can't wait for the mother and I don't think the mother has any moral right to come back later and simply pluck that child out of the life they've grown into and are emotionally and developmentally vested in. I think it's almost worse if the mother perpetuates limbo on the child--leaving the threat of return and RU there indefinitely. If the mother were gravely ill and unable to parent, that might be one thing, but to just go off to do something else more interesting for an indefinite amount of time? I don't think so.

I'm sorry if I am coming on strong, but this is just the kind of self-absorbed and absolutely selfish thing our niece's first parents used to say, that they wanted us to just take custody and take care of her but keep their status as her parents. Maybe even take her back when they were well enough then give her back to us again when they were not. The fact that they could not understand how deeply and callously harmful this idea was for the child only proved to me another reason why they were unfit to parent anybody.

The other big problem with this custody idea is that, "down the road" adoption will still almost always be out of the question without consent from both parents. You seem to think a "custodian" or "guardian" can simply petition and that will be it. No way, it just simply does NOT happen that way.

It is nearly impossible to terminate parental rights privately, and certainly highly expensive to try. I have friends who went the guardian route privately, to "keep the child out of the system." The parent petitioned for return, they went to court, put on a case, the judge ordered a case plan (even though not a foster case), etc., etc., last year they were at $20K in and counting, now it is closer to $30K. In the meantime, there have been numerous hearings and petitions for visitation and other parental rights that they have had to defend against. They were actually put in the position of paying for some of the parent's services themselves!

The point is, you have to have grounds to terminate parental rights--and if the foster case is closed, the evidence for the grounds is sealed! If it is difficult for the state to terminate rights with access to all of the information and the full weight of the state's legal and financial depth and resources, how well is a family--who may never have had any clue or right to a clue due to confidentiality as to the actual details of the original removal--going to pull off this trick?

You say you believe in permanency for children, but yet I sense a casual dismissal of this principle for children who are with their relatives. Why should children be punished and denied their basic human rights just because their family loves them enough to want to raise them? Why should families be punished for stepping up for their loved ones? Why are these kids and families less deserving of safety, legal security, and special needs help than those who don't have a family connection?

I hopethat what I've written may influence your thinking as a GAL on cases in which a family wants to do what's best for their kin. Please don't let social services off the hook of doing their job--running a case plan, providing services, etc., and, when the time comes, either making RU work or going for TPR. No TPR is no kindness for the child or the family, none at all.

Thanks for listening.