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.