If your child suffers a serious unexplained injury, the state just might seek to terminate your parental rights. It will do so in a closed courtroom, where the public never gets the right to know what passes for justice.
Termination of parental rights is the moral equivalent of the death penalty. A court can transform you into a stranger to your child, having no more right to raise her, or even see her, than you do a child one thousand miles away whose name you’ll never hear. Your children will be given to strangers to raise.
These cases are uniquely heartbreaking.
In some cases, few would argue that parental rights should be terminated. Some parents cannot do the job of childrearing; others can do the job, but chose to behave in ways that are so injurious to their children that their children are better off without them.
Making difficult judgments in these cases should not be a matter of guesswork. The courts need to be exacting in sifting through the evidence in termination matters.
Yet state law permits termination on flimsy evidence.
State law permits the state to seek termination of parental rights when a child suffers “nonaccidental or inadequately explained serious physical injury”. In such cases, the law holds that an unexplained injury is “prima facie evidence” of “acts of parental commission or omission sufficient” to justify termination.
Don’t be put off by the Latin term. Prima facie merely means “at first look” or “on its face.” In other words, prima facie means just enough evidence to start a case. It isn’t necessarily enough to win it, mind you. It’s just enough to get you in the door, and to keep you in courtroom.
Suppose you have a young child. He or she suddenly complains of pain, or, if the child is too young to speak, suddenly appears to be in pain. You do what any good parent does: you take the child to a doctor. Upon examination, the doctor discovers a hairline fracture.
Is that a serious injury? Most likely.
The doctor asks you how the injury occurs. You have no answer. Now what?
Health-care workers are what the law calls mandated reporters. They are required to report suspected cases of child abuse to the Department of Children and Families. A child with a serious unexplained injury is likely to be reported. What happens then?
The state begins an investigation. Suddenly, a social worker appears at your door; perhaps the state has already filed a motion for temporary custody, an emergency procedure to remove the child from your home.
The social worker asks: How was your child injured?
You answer: I don’t know.
Suddenly, your relationship with your child is at risk. Even if you did nothing to injure your child and are truthful, the state can conclude, and sometimes does conclude, that you are unfit to raise the child. The unexplained injury is, on its face, evidence of a parental act or omission sufficient to justify termination.
You read that right: You need do nothing wrong at all to lose your child.
DCF will cry foul and say this doesn’t happen. It only acts for good cause. But it’s not that simple.
Most of us intuitively understand that doing some things are so wrong as to justify serious consequences: Intentionally breaking the limb of your infant son is a shocking sort of offense that calls into question the health of the parent-child relationship.
But suppose there is an injury, and you don’t know how it happened? In DCF’s mind, you’re guilty anyhow. Why? You’ve omitted the responsibility to keep a close eye on your kids.
It is this later theory termination due to omission that is so frightening. You can be a good parent, and a good person, without knowing how your child acquired every bump and bruise. The world is filled with malignant contingencies. No parent can protect their child from every conceivable harm.
How many parents have lost their children to the state through no fault of their own?
Of course, parents have the right to fight termination proceedings in court. In such cases, no jury weighs the evidence. The right to decide the case is given to a single judge. I’m uncomfortable giving these decisions to judges. Juries should decide them.
Social scientists sometimes speak of the phenomenon of agency capture. That’s where regulators develop too cosy a relationship with the industry they oversee: They become, as it were, captured by those whom they police. Can judges get too cosy with the agency over whose cases they routinely sit? I suspect so.
Try reassuring a parent facing the parental death penalty that justice will be done when they are accused simply of not being able to explain something. It is a terrifying prospect: I’ve seen grown men weep on the witness stand in such cases.
These cases should be aired in open court so that the public can express either approval or disapproval of the decisions DCF makes in seeking to terminate parental rights. It’s too easy for the goody-two-shoes in DCF to waive the “best interest of the child” banner, the legal standard under which the agency acts, at every passing phantom.
Trying these cases in closed courts is simply wrong.
The policy supporting closed courtrooms is designed to protect children. It makes some sense. Minors have their entire lives ahead of them. The young, especially infants and toddlers, have no voice.
But the courts are public institutions. They administer the rule of law. Transparency in the law is important. It builds public confidence in our institutions. What’s more, public participation helps foster a climate in which necessary reforms can be sought.
At a minimum, lawmakers should conduct a review of how DCF is using the statute to permit unexplained injuries to serve as a basis for termination of parental rights. I can’t talk about the juvenile cases I’ve handled — the law forbids it. So let me end on this note: What I’ve seen sickens me. It would sicken you, too, if you were permitted to see it.
Donald Trump walked away from the so-called "Acela primaries" in the Northeast a complete winner, sweeping the Republican contests in Connecticut, Delaware, Maryland, Pennsylvania and Rhode Island in convincing fashion. All eyes are now focused on Indiana, where Texas Sen. Ted Cruz has declared war: If Trump can defeat Cruz at the Hoosier Alamo, will Cruz yield?
That's about as likely as Bernie Sanders' folding his tent, despite the near impossibility of his securing the Democrat nomination: Hillary Clinton has it all but locked up. Yet there's little joy over the prospect of another Clinton presidency: she has the charisma of an actuary.
There's something oddly reassuring about the chaos in this year's presidential primaries: It makes me believe in something like hope. So long as people are restive, and are ready, willing and able to voice discontent, the republic remains alive.
I'm hoping the determination of outsiders to change the course our major parties have set is a sign of fundamental change. We're pouring new wine into old skins, and the old skins are breaking. There's nothing particularly new about this sort of disruption, no matter how painful it may be to endure it.
Amid all the hand-wringing by the chattering class this year, I've yet to see one writer or commentator mention a wonderful book published in 1970. Written by the American political scientist Walter Dean Burnham, "Critical Elections and the Mainsprings of American Politics" argues, simply, that political parties become tired and complacent. From time to time, they are remade to reflect new interests, passions and pressures arising from the electorate.
So what are we learning this year? From the right comes Trump. His is the voice of new pariah class among the politically correct: when he says he wants to make America great again, what he really means is that those who bear what the left calls "white male privilege" aren't mere tokens to be spent in the pursuit of the dreams of our new identity politicians.
In the dawning new era in which Caucasians will become a minority, Trump's is a defiant claim to assert the rights of this new minority to equal respect. His appeal to white working-class voters is simple: Your lives matter too. The formal rhetoric of democracy demands no less.
And what of Bernie Sanders?
Sanders, too, reflects unheard voices demanding their right to be heard. In Sanders' case, those voices are those of folks dispossessed in an economy marked by increasing inequality. His appeal is simple: all lives matter; without economic opportunity for all, we are a republic in name only.
I love the presence of Trump and Sanders in our political life. Both represent voices that demand to be heard in the new political landscape being forced on us by demographic and economic change.
And what of Hillary Clinton? She's a tired old ironing board of a candidate, a place to press old laundry. She may well win this year, but her election will result in nothing more than a holding action. She has the creativity of a tree stump: Her life is but an elaborate preparation for the main chance.
Burnham teaches that from time to time the country changes in fundamental ways the political class just can't comprehend. So voters force change on the parties. We're in a transition period just now. I look forward to the years to come. Something new is emerging in our midst; it's just not yet clear what this new thing will be. •