Some lawyers say child welfare system violates parents' rights
For years, the state Department of Children and Families under Commissioner Joette Katz has worked to change the way it does business, removing fewer children from their homes and placing those it must take with relatives or other people they know.
But advocates and lawyers say those changes don’t address a Juvenile Court system that is stacked against parents trying to keep their children. They'd like to see open court proceedings and improved legal representation for parents, among other changes.
The child welfare system has great authority, so it also must have great oversight, said attorney Lisa Vincent of Torrington.
"Somewhere along the way as a society, we have given this agency exorbitant amounts of power. And the public operates on some perception that this power is genuinely used to protect abused and neglected children. And for those many, many people who end up involved in our Department of Children and Families, the rights of those individuals are overlooked every day," she said.
"Children deserve to be safe and I agree with that. Everyone does," she said. "But that premise has allowed us as a society to give this agency too much unchecked power."
Cynthea Motschmann, who receives clients through the Connecticut Community Law Center, an initiative of the University of Connecticut School of Law and the Hartford Bar Association, said parents meet with DCF without lawyers, sign agreements out of fear of losing their children and don’t understand their rights.
“DCF strongly urges parents to cooperate. They essentially strong-arm parents to enter into agreements that violate and infringe on their constitutionally protected rights,” she said.
Motschmann and Vincent have scheduled a series of “know your rights” forums for parents across the state, starting Thursday. Vincent is representing Kirsten Fauquet of Groton, whose son nearly died of starvation and abuse after he was removed from his parents’ home by DCF and placed in the care of a relative in June 2015.
The agency has moved to terminate Fauquet's parental rights to her five children.
DCF spokesman Gary Kleeblatt said the agency is part of a larger child welfare system and is not the entire system. The agency has reduced the number of children removed from homes by 8 percent since January 2011 and instituted practices to work with families, he said.
“The whole spirit and direction of the department is about voluntary participation of families whenever we can accomplish that,” he said. “We can’t always succeed in our effort, but the entire thrust of the department is cooperating with families to find answers that work for them and their children.”
Katz, a former state Supreme Court justice, took over as commissioner in 2011 and has made keeping more families together a central theme of the department.
The efforts have yielded results. In 2016, of the children who were the subject of DCF meetings with parents to consider removal, 46 percent remained at home, DCF Administrator Kristina Stevens said. Of the children who did not, the agency recommended three-quarters be placed with relatives or people known to the child, she said.
'Don't let DCF in'
DCF has broad power to enforce its mandate of child protection. It may interview children without their parents’ knowledge, remove children for up to 96 hours without a court order, and ask the court to order parents to accept its services.
The agency runs a 24-hour hotline to take calls about suspected child abuse or neglect. It also receives calls from those mandated to report to it, including teachers, doctors, police officers, coaches and day care workers. Cases that wind up in court represent the most extreme and chronic cases involving children, DCF Ombudsman Ken Mysogland said.
When parents are first approached by DCF, they’re given a pamphlet outlining their rights. It includes this warning: "You can choose not to speak with the social worker, but the Department is still required by law to assess or investigate the report. If DCF believes your child is in immediate danger of serious harm, we will contact the police and, if necessary, file a petition with the court."
Parents who read that cooperate out of fear, Motschmann said.
"Here I'm the attorney and I'm advising the parents, 'Don't let DCF in.' Then they get this pamphlet that says, 'If you don't let me in, I'm going to take your kids,'" she said.
Maureen Duggan, assistant legal director for DCF, said the agency is required to inform parents of their rights in writing and does so in every case. The Office of the Chief Public Defender recently asked for some language changes to the pamphlet and "we welcome that," she said.
Parents receive the pamphlet most of the time but don't read it or don't understand it, said Christine Rapillo, director of delinquency defense and child protection for the Office of the Chief Public Defender.
The last version she read seemed to focus on benefits of cooperating with DCF instead of advising parents of the risks, she said. DCF has expressed willingness to review the document with her office, she said.
Access to representation
Under DCF's new approach to work with families, it will call a meeting with parents if it's considering removal of a child or has just removed a child. Parents may bring anyone they wish to the meeting. But they're ineligible for court-appointed attorneys at this point, unless the agency already has filed a petition of neglect or abuse against them. Most parents go to "considered removal" meetings without a lawyer, Rapillo said.
DCF doesn't bring a lawyer, either, Duggan said. "We're not using this as an investigative tool. We're using this to help families decide what's going to be best for their children," she said. DCF has a dedicated staff trained to moderate the meetings, DCF Administrator Stevens said.
But Motschmann said parents make statements and sign agreements at the meetings that can and are used later to prosecute them in court.
Providing counsel would be better for parents, but it would require a change in the law, Rapillo said.
If the agency files a petition and also seeks an order of temporary custody, the court typically assigns a publicly appointed lawyer the day of a preliminary hearing. That lawyer can't see all the information DCF has. Defense attorneys have access to petitions alleging neglect or abuse, but not documents referenced in the petitions. They must request them from the agency, which then assigns the request to a paralegal. Timeliness of the response varies.
"Some paralegals get it to me right away. And in some cases, it's been over a month," Motschmann said. When a judge signs an order of temporary custody, a preliminary hearing is held within 10 days, with a follow-up hearing on evidence within 10 days if the parties can't agree.
Rapillo said the process for getting records has been "time consuming and cumbersome," but DCF has worked to streamline it. A new law that went into effect July 1 eases some requirements made of DCF to redact information and should improve it, she said.
Duggan said the agency prioritizes requests based on trial dates provided by attorneys. The system is only as good as the information staff receive, she said. "It's not appropriate to send it in the night before the trial or two days before," she said. The department has processed more than 5,000 record requests in the last 10 months, she said.
Since the juvenile courts are closed to the public, the proceedings lack oversight, according to some lawyers.
"DCF can remove your kids, file a Juvenile Court petition to terminate your parental rights and place your kids up for adoption," said attorney Michael Agranoff, who fought for the mini-Miranda law requiring DCF to notify parents of their rights. "There has to be a public trial." The mini-Miranda law requires DCF to notify parents of their rights, similar to the Miranda rule in criminal cases, and was added in Connecticut in 2011.
No one can know what’s in a child’s best interest unless all sides are fully heard, said Richard Wexler, executive director of the National Coalition for Child Protection Reform. But most families aren't heard because publicly appointed counsel are overloaded and the process favors DCF, he said. Without both sides, judges effectively hear one side of the story, which biases proceedings and encourages caseworkers to be sloppy, he said.
“The one potential check and balance against that is open courts. That check and balance is absent in Connecticut,” he said. A minority of states have open court hearings, but because they're among the largest states — including New York — Wexler estimates that at least 40 percent of foster children live in states where hearings are open.
Adversarial for a reason
Court data show most requests for temporary custody and termination of parental rights in Connecticut are decided in favor of DCF.
In the 2017 fiscal year, more than 97 percent of 1,967 requests for ex-parte orders of temporary custody — or those in which a judge had to decide whether to temporarily remove a child based on a DCF request prior to a hearing — were granted.
Of the ex-parte orders granted, 87 percent were upheld after a hearing.
Parents lost most cases where DCF petitioned to terminate parental rights. Of 605 petitions decided in the 2017 fiscal year, 86 percent were granted.
Judge Bernadette Conway, Connecticut’s chief administrative judge for juvenile matters, said the system is designed to be adversarial for a reason: because parties in a case have competing interests. The goal is to achieve child safety, permanency and well-being, Conway said.
She said judges know it's harmful to remove children from their homes, so they weigh this when looking at cases. But if a child dies, the system can’t work toward permanency or well-being, she said.
'Guilty no matter what'
John Quirsfeld, a 29-year-old carpenter, lost his daughter to DCF care three years ago. When he was at work, his girlfriend got into an argument with her mother and pushed her, he said. The mother called police, who called DCF. They showed up later with police officers, he said.
Police told him to put his 1-year-old in the car with DCF. His girlfriend, the child's mother, was crying and he turned the child over. He thought he’d right the situation in a few days, he said. He couldn’t afford a lawyer.
He and his girlfriend, who cleans houses for a living, showed up at DCF offices for a follow-up meeting, and then went to court without a lawyer. He was later assigned a court-appointed attorney and met her less than a half-hour before a hearing about whether to grant DCF an order of temporary custody.
His lawyer urged him to remain silent. The hearing was over in about 15 minutes, he said.
“I told my lawyer that I wanted to file whatever the appeal or whatever the legal means for disputing it is, but what I realize now is I should have gone to trial at this first hearing,” he said. “She said she’d file it for me. But nothing ever came of that. They just settled that first case and I was pretty much screwed from then on.”
He sees his daughter, who turns 4 in October, every other week for two hours. His girlfriend had a “mental breakdown” and started abusing Xanax, an anti-anxiety medication, he said. The department is seeking to terminate his and his girlfriend’s parental rights.
“It’s totally insane. I don’t know what’s happening ... there doesn’t seem to be any oversight or balance. It’s all one-sided,” he said. “I feel like I know it’s a basic constitutional right to have a family. And I feel like my rights have just been completely shredded and trampled on and ignored. I don’t feel like I have any rights.”
Wexler, of the National Coalition for Child Protection Reform, said the case illustrates what happens to families without resources in the system.
“Even if the alleged depression and abuse of Xanax were not caused by DCF in the first place, that still is not grounds to take the child from either parent — it’s grounds to provide mental health services to the mother,” he said. “I’m sure there are plenty of people in Westport and New Canaan who have postpartum depression and/or abuse Xanax. I’ll bet DCF doesn’t run around taking away their children.”
Fauquet, the Groton mother whose children were removed over concerns about her mental health and inability to pay the rent, said she never had a chance to defend herself.
“My lawyer filed for a hearing a year ago to get the kids back, and it’s been delayed and delayed,” she said. “There’s no equality. It’s not a fair trial. There’s no innocent until proven guilty. It’s guilty no matter what you say."
Defending parents in temporary custody cases requires skills like those of criminal lawyers handling arraignments, said Rapillo of the public defender's office. Her office is working with experienced lawyers to develop a trial skills program specifically for child protection hearings and hopes to launch it next year.
The Connecticut public defender's office caps caseloads at 100. Lawyers don't have to take 100 cases and can decline cases, Rapillo said. New lawyers start at a lesser number and must complete three-day training and work with a mentor before being assigned a case, she said.
Agranoff, an attorney, said the system needs broader reform, including open courts and an independent advocate for parents who can look at the issues and address the legislature.
"There's a child advocate, a victim advocate, a women's advocate," he said. "There is no parent advocate. There simply is none."
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