Step Eight: Family Court Considers A Child's Future
When a child's family seeks her or his return, or when ACS or other agencies seek to terminate parental rights in order to free a child for adoption, the process moves into the Family Court system.
Family Court is distinct from criminal or civil court. In theory, it exists to advance the rights and safety of children; in practice, it is an oft-overburdened clockwork of regulations, hearings and rulings where bottlenecks, understaffing and overloaded court dockets are commonplace. Judges may have only a few minutes to evaluate a case and reach a decision.
Family Court judges hear child welfare and juvenile justice cases. In the child welfare arena, Family Court hearings determine whether and when children are returned to their families of origin. They outline the circumstances of visitation when children are in foster care, and they hear complaints when foster placements don't work out and children require a second, or third, foster home. They can also terminate parental rights – or restore them.
Crucially, Family Court is built on the trial model. The structure of a hearing or trial requires adversaries – and lawyers to represent them. The ACS advocacy dynamic can shift dramatically once cases come to court: Instead of the agency viewing parents as potential partners in improving children's lives, the family and the agency – and the lawyers representing their interests -- are trying to defeat one another.
Even within the adversarial trial model, Family Court enjoys certain exceptions that favor the government. The rules of evidence that define what's legal and admissible in criminal court, for example, are more flexible and more porous in Family Court: Hearsay is excluded at criminal trials, but is 100 percent admissible in Family Court permanency hearings.
At criminal trials, the burden of proof rests on the prosecutor to substantiate and prove the charges. In some Family Court trials, the burden of proof shifts to parents disproving charges of abuse or neglect: Culpability is presumed and innocence must be proven. For that reason, "taking the Fifth" is akin to an admission of guilt: Parents who don't testify to prove their innocence are assumed to be guilty.
Alleged child abuse victims are generally not called to testify, but can speak with Family Court judges "in camera" – in a private, closed conversation that judges use to inform their decisions – and for which transcripts and other records are not available. "In camera" hearings deny opposing parties the right to confront testimony; no one can say, "that's not what happened," because no one outside the judge's chambers hears or can learn what has been said.
Family Court also permits a kind of "negative proof": If a child's "impairment" – the problem that prompted the original complaint to the child abuse hotline – has improved in foster care, that can be taken as evidence of prior abuse or neglect and used against a parent in a hearing to determine whether a child may be returned to the home.
For example, a charge of neglect prompts the removal of a child from the family home. If the child appears better cared for in foster care – if she is better-fed, or wearing cleaner clothes – that improvement can be taken as proof that the child was previously neglected. While the improvement may be legitimate, citing the improvement as evidence requires speculation and inference – subjective human decisions.
Communications protected in criminal and civil court, as between a doctor or therapist and a patient, or between married parents, are not protected in Family Court.
And there is no double-jeopardy protection in Family Court: The same person can be tried in both criminal and family courts, and can receive separate punitive judgments.
All of these loopholes and adaptations are required, advocates and family court workers say, to protect the best interests of the children in the child-welfare system and to achieve the goal that everyone, across the board, seeks: the reunification of families in safe, supported households.
The human factor:
Along with the myriad laws, regulations and guidelines that inform hearings, decisions and rulings in Family Court, the human factor profoundly affects each child's case: One judge might elect to send a child to foster care, while a colleague would mandate services that would permit the child to stay at home. A vigilant lawyer could aggressively defend a parent charged with abuse – or attack another parent in a custody battle, when the Court must decide which home will receive children released from foster care. Every decision, large or small, is informed by objective information and by subjective, human interaction – with the well-being of the city's most vulnerable citizens at stake.