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| Indiana State Capitol - Photo by Warren LeMay |
● Among other things, they want to let those nice white,
middle-class foster parents go to court on their own and try to take you and
keep you forever – or at least as long as they feel like it.
The Context:
The family policing system in Indiana has a number of distinctions – all of them bad.
● Nationwide, 37% of children will be forced to endure the trauma of a child abuse investigation before they turn 18. In Indiana, it’s 58%. Nationwide, 53% of Black children will have to endure this trauma. In Indiana, it’s 79% - the highest rate in America.
● It doesn’t stop with the investigation. Eighteen percent of Black Indiana children will, at some point, be torn from everyone they know and love and consigned to the chaos of foster care. That ties Indiana with three other states for the highest rate in America.
● In any given year, among all children, Indiana takes them from their homes at a rate 66% above the national average, even when rates of family poverty are factored in.
● When going up against this family police juggernaut (a more accurate term than “child welfare system”) families often are almost literally defense-less – because their lawyers often have so little time and so many clients. Many Indiana counties want to keep it that way. One in five actually turns down federal funds to improve representation for parents and also for children. One county court administrator explained that county’s refusal this way: “[T]he system we have works well.”
None of this is because Indiana is a cesspool of depravity with
vastly more child abuse than the national average. In fact in Indiana in 2022, 85% of the time, when children
were thrown into foster care their parents were not even accused of physical or
sexual abuse. Forty percent of the time, there wasn’t even an allegation of
drug abuse.
And now, some Indiana lawmakers want to make everything worse, with a bill that would
move the family policing system in Indiana even closer to becoming the ultimate
middle-class entitlement: Step right up and take a poor person’s child for your
very own!
The
bill:
The bill further
stacks the deck against families in so many ways that just a summary listing
all its proposed changes in current law – I count at least 40 of them -- runs
to two-and-a-half single-spaced pages. Every one of those changes either makes
it easier to take children away, harder to return them home or both.
To
understand what may be the worst of these provisions, let’s leave the world of
the poor – which is, of course, almost the entire world of family policing, and
consider a hypothetical from the world of the rich:
Suppose in September you
send your son off to boarding school. But when Christmas vacation comes around,
he does not return. Instead, you got a letter from a lawyer for your son’s gym
coach.
The lawyer explains that
your son and the coach have “bonded.” An expert on “attachment theory” they’ve
hired concludes it wouldn’t be in your son's "best interests" to
return home. Instead, the coach is going to court to adopt your child – because
he now has every bit as much right to your child as you do.
Ridiculous right? Well,
ridiculous if you’re rich. But in at
least 15 states, if you are poor, and that poverty leads to your child being
taken, and the middle-class foster parents simply decide one day that your
child would be better off with them, they can march into court, bypass
even the family police agency, file their own petition to terminate your child’s
right to live with you (a more accurate term than termination of parental
rights) and adopt your child. In Indiana,
at least one lawyer already has found an entirely legal method to work the
system in a similar way. This bill would would open the floodgates.
In some states, allowing
foster parents who are likely to be white and middle class to be “intervenors,”
declare themselves better parents for children who are less likely to be either
of those things and then try to persuade a court has created an entire cottage
industry – as eplained in this story from
ProPublica and The New Yorker:
… It’s not acceptable in most family courts to explicitly argue that, if you have more material advantages to provide a child, you should get to adopt him or her. Outside the courtroom, though, intervenors are sometimes less discreet.
During a 2021 case meeting, according to a specialist who took notes, a foster parent and [attorney Tim] Eirich client said, of the prospect of reuniting a baby boy with his biological family, “He’s used to being raised by a maternal figure who stays home. We have 1.5 acres for him to run around, and they have an apartment.” Another foster parent and Eirich client told me that reuniting a baby girl with her birth mother would mean transitioning her from a “personalized nanny” to a “day care center with, you know, 50 kids running around, and sleeping on a little cot.” …
Oh, and if you want to
see how much worse it can get, check
out the follow-up story.
These stories focus largely
on Colorado – where lawmakers have now had the decency to curb, though not to
abolish, the right of foster parents to barge in this way. But the Indiana bill would move in the
opposite direction, making it even easier.
That would come on top of
an existing loophole in Indiana law. The
lawfirm of adoption attorney Grant Kirsh is the proud recipient of an Angels in
Adoption award from the Congressional Coalition on Adoption Institute. In one of his many YouTube videos,
Kirsh points out, twice for emphasis, that in Indiana “you can file a petition
for adoption for anybody at any time!”
Of course it’s more
likely to work in some cases than in others. As ProPublica explained:
Kirsh tells [foster parents] that, should the state’s child services agency move to return a child in their care to the child’s birth family, they can simply serve a notice of adoption, which the birth family will have only 15 days to contest. If there is no response in that time frame, the birth family loses the right to challenge the adoption.
“It’s nuts,” Andrea Marsh, a family court lawyer in Indianapolis, said, calling the process “similar to intervention, but the nuclear option.” One of her recent clients, a birth mother in Indianapolis, was trying to follow her court-ordered treatment plan when the suburban foster parents who were caring for her child filed for adoption in their home county. (Court-shopping is a strategy that Indiana adoption attorneys use to circumvent a court that is still trying to reunify the birth family.) The mother failed to reply by the deadline and, when the adoption of her child was finalized, neither she nor the local child services office could do anything about it.
The Indiana bill would
make it all even worse by setting up a legally sanctioned system of “intervenors”
who could barge in sooner. They would be
full parties to the case at every stage, and they could file their own
petitions to terminate children’s rights to their parents. All this in what some measures suggest may already
be the most racially biased family policing system in America.*
Excuses for this
legislation
The excuses for
compounding the racial and class bias that permeate Indiana family policing are
depressingly predictable.
First, invoke horror
stories:
So at a hearing on the
bill, a foster parent spoke of how, if only she could have brought her own
termination action, perhaps her foster child would not have been returned to
the birth father who tortured and murdered him.
But as always, the horror
stories go in all directions.
● If this bill becomes
law, will there be more cases like that of 22-month-old
Nova Bryant of Clay County? She was taken from her parents only to die in foster
care. There appears to have been no
allegation that the parents abused Nova, only that they couldn’t cope with her
special needs.
● If
this bill becomes law, will there be more children like Dakota Levi Stevens of
Porter County? She too died in foster
care, her foster mother was convicted of reckless homicide. Family members spent years desperately trying to get Dakota out of the system, one after another offering to take her
in. All were turned down in favor of strangers.
This bill would make such outcomes more likely.
inherent emotional trauma of being thrown into foster care, there is a shockingly high rate of abuse in foster care itself. Study after study, including one specific to Indiana, finds abuse in one-quarter to one-third of family foster homes and the rate of abuse in group homes and institutions is even worse. In contrast, multiple studies find that in typical cases, not the horror stories, children left in their own homes do better even than comparably-maltreated children placed in foster care.
And of
course, with one provision of the bill after another making the system ever
larger, it would only further overload caseworkers, leaving them even less time
to find the relatively few children in real danger.
So if anything, this bill, backed by horror stories, might wind
up causing more horror stories.
Misunderstanding
permanence
The other
argument for the bill is the same argument that stampeded Congress into passing
the so-called Adoption
and Safe Families Act of 1997. The claim that doing too much to help
families was the reason children languish in foster care.
On the
contrary, advocates of family preservation were the first to raise the issue of
children languishing in foster care.
Advocates of tearing apart families then exploited the plight of these
children to pass ASFA – a bill which, like federal legislation of the same era
commonly known as “the crime bill” and “the welfare bill” targeted the same
population: poor Black people, especially mothers.
But ASFA
failed. It created a generation of legal orphans with no ties to their own
families and no adoptive home either.
And it did
nothing to reduce the time children spent in foster care.
The real
reason children languish in foster care is because overloaded agencies don’t
have time to do anything else: They recklessly tear children from their
families, then those children are filed away and forgotten as workers race on
to the next case. So it’s no wonder that
in Indiana where, it seems, caseworkers have never encountered a Black family
that isn’t suspect, and which tears apart families at such a high rate,
children are trapped in foster care longer than in some other states.
By
making it even more likely that children will be taken and less likely that
reunification will be an option, this bill will only make it more likely that
children’s time trapped in foster care will increase.
But as Prof. Vivek Sankaran,
director of the Child Advocacy Law Clinic and the Child Welfare Appellate
Clinic at the University of Michigan School of Law explains, what children need
is relational permanence. Children need to be able to stay connected to everyone
who loves them, whether they can care for them or not. Why in the world would you want to deprive any child of as
many loving connections as possible? Unless the system that
constantly postures about “children’s rights” and “the best interest of the
child” isn’t really about either.
One more advantage to relational
permanence: it’s likely to be more permanent. Depend entirely
for permanence on one stranger, or perhaps a stranger couple, and what happens
when that cute little tyke becomes a rebellious teen and the strangers give up
on her or him? We don’t know how often this happens, because family
policing systems almost never ask questions to which they don’t want to know
the answers, but the data we do have are concerning. In contrast, weave a web of relational
permanence and the odds are far better that someone will always be there for
that child.
This is
why the American Bar Association Center on Children and the Law, which once had
a project to expedite termination of parental rights, now
has a project to end it.
That
means doing more, not less, to avoid taking children away and more, not less,
to reunify them when taken. It also
means doing more to facilitate guardianships by relatives and others close to a
child. But, of course, one of those 40
or so changes in the Indiana bill would make guardianships harder.
Indiana
children need laws that put them first, instead of prioritizing the rescue
fantasies of white middle-class strangers.
*-Most racially biased in the sense of anti-Black prejudice. For anti-Native American bias, the data suggest the worst is Minnesota – though, at least that state’s lawmakers are trying to do something about it. For anti-Hispanic bias, the worst might be Maine.
