Maryland Office of the Public Defender Child in Need of Assistance - - PowerPoint PPT Presentation

Maryland Office of the Public Defender Child in Need of Assistance Division Sylvia V. Long, Esq.

 The Right to Parent is Fundamental  14th Amendment  Liberty Interest  More Precious than Property

 BEST INTERESTS OF ALL CHILDREN:  1. to be with their parents  2. to be with their families



 The best interests of the child standard embraces a strong

presumption that the child’s best interests are served by maintaining parental rights. If it were otherwise, the most disadvantaged of our adult citizens always would be at greater risk of losing custody of their children than those more fortunate. Those of our citizens coping with emotional or mental difficulties could be faced with such discrimination.

 In Re: Yve S., 373 Md. 551, 819 A.2d 1030 (2003)

Measure of Evidence Required

Beyond a Reasonable Doubt Clear and Convincing Preponderance

 "To convict an accused, a trier of fact must

be firmly convinced based on evidentiary certainty." DC Superior Court Judge Lynn Leibovitz, 6-29-10, acquitting three men of coverup in a slaying.

 The key to the verdict, the strong

distinction between what she might feel in her gut and what was proven in her courtroom.

 Abiding certainty.

 Highly probable, civil standard of proof

 Due Process Clause of the Fourteenth

Amendment Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.”

 Santosky v. Kramer, 455 U.S. 745,

747-67, 102 S.Ct. 1388, 1391-402, 71 L.Ed.2d 599 (1982)

 BEYOND A REASONABLE DOUBT

Hard to Prove: Casey Anthony goes free

 CLEAR AND CONVINCING

For Termination of Parental Rights

 PREPONDERANCE OF EVIDENCE

to take children from their families Thus, the redistribution of children of the poor

 Best Interests of Child

• r Minimal Standards?

 Are Parents unfit?  Do exceptional

circumstances exist?

 In Re Adoption/Guardianship Nos.

J9610436 and J9711031, Maryland, 2001

 Cognitively limited father is entitled to

specially tailored services. There was not clear and convincing evidence to terminate the father’s parental rights.

 The Presumption that the child’s “best

interest” is served by retaining a legal relationship with his natural parent was not

• vercome.

 The Adoption Assistance and Child Welfare Act of 1980  Title IV-E entitlement, from 1960s, transferred AFDC

money to Foster Families if child is removed from family

 Title IV-E in 1980 requires states to make “reasonable

efforts”

 to prevent removal and reunify  Courts required to oversee these efforts  1981 Social Services Block Grants  1986 Independent Living Program

• 1. Reunification Timeline: 15 months/compelling

reasons.

• 2. Adoption Incentive Payments
• 3. Technical Assistance Funding to Promote Adoption
• 4. Funding Incentives for Speeding Adoptions Across

State Lines

• 5. States Required to Seek TPR based on timelines
• 6. Performance Based Funding System Title IV E

Funds

• 7. Permanency Review Hearings
• 8. Foster Parents Entitled to Attend Hearings

 Kinship Guardianship Payments if

Reunification Not Planned

 Adoption Subsidies Doubled  Quotas: Adoption Incentive Grants /

Ratio of Adoptions to Children in Care

 Kinship Connection Grants, for non

birth parents

 “this case involves nothing more than a simple

disagreement between the court and Granville concerning her children's best interests. The visitation

• rder was an unconstitutional infringement on Granville's

right to make decisions regarding the rearing of her children.”

 Troxel v Granville, US Supreme Court, 2000

Presumption best interests lie with parents

The phrase “best interests of the child” is not synonymous with “with whomever the child would be better off.” Children are born into different

• circumstances. They are dealt different
• hands. The vast majority of them cope.

Some from humble origins and upbringing even end up on state supreme courts. It is simply the way life is.

Skilled Foster Mom

How much permanency will they have after the adoption subsidy ends at age 18 or 21. Will they go back to their natural family?

 Like “Best Interests” “Risk of Harm” or

“Neglect”

 A subjective standard.  Referrals to programs, monitoring

children in foster care

 Psychological evaluations

Counsel Fair Trial

 Discovery  Present Evidence  Cross Examine  Notice  Hearing  Rules of Evidence

 Indicia of reliability  Opportunity to observe  Ability to remember and report  Competency

 Knowledge, skill, training, experience  Appropriateness to subject  Factual basis  If the testimony will assist the trier of fact in understanding

evidence or determining a fact in issue

 Peer Review  Tested  Reliable Method  Method designed for purpose used

 APA Guidelines

Custody Custody in Child Welfare Cases Persons under disability DSM IV Psychological Testing

 Competency  Qualification  Relevance  Validity of Methods and Conclusions  Examination of basis

 Government invites family and non family  Parents asked to sign releases so confidential

information can be shared

 The group tries to reach a decision that under

the law, a parent is entitled to make alone.

 Are Attorneys invited?  Are non-attorneys giving legal advice?  Balance of Power?

 Buck v. Bell, 274 U.S. 200 (1927)  upheld a Virginia statute permitting superintendents

• f institutions for individuals with mental disabilities

to condition release of residents on involuntary sterilization if they determined that sterilization was in the “best interests of the patient and of society.” The Court concluded that “[i]t would be strange if [the state] could not call upon those who already sap the strength of the State for these lesser sacrifices . . . in order to prevent our being swamped with incompetence.” 274 U.S. at 207. According to the Court, “[i]t is better for all the world, if . . . society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles are enough.”

 The power to sterilize, if exercised, may have

subtle, far-reaching and devastating effects. In evil

• r reckless hands, it can cause races or types which

are inimical to the dominant group to wither and

• disappear. There is no redemption for the individual

whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty…strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or

• therwise, invidious discriminations are made

against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. The guaranty of "equal protection of the laws is a pledge of the protection of equal laws."

 Title II of the ADA prohibits state and local government

entities from discriminating against individuals with disabilities in their programs, services, and activities. 42 U.S.C. § 12132. Specifically, a public entity cannot provide individuals with disabilities an unequal opportunity to participate in its programs, services or activities.

 Irving N. v. Rhode Island Dep’t of Children,

Youth and Families, No. 06-603 (cert. petition filed Oct. 30, 2006), cert. denied, 127 S.Ct. 1372 (2007).

 Denied Review  Mother and Father  Complied with every referral  Loved child and she loved them  Psychologist: emotional and cognitive

functioning too low

 ADA does not apply as “there must be a

limit to the extension of reasonable efforts.”

 Rhode Island decision is inconsistent with

the plain language of the ADA and with the Supreme Court’s ruling in Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206 (1998), which made clear that the ADA makes no exceptions for activities that implicate particularly strong state interests. Because the Court declined to accept the case, the conflict among the courts remains unresolved.