What is a "child"?

...a complicated lawsuit, and other child welfare news

When I first became involved in child welfare law, a lot of attorneys dismissed the field as “Kiddie Court.” The allegations in a new lawsuit out of Vermont demonstrate just how wrong that perception was 25 years ago and remains today. The scenario would make a great issue-spotting essay question a state bar exam.

A.V., the plaintiff, was 32 and pregnant with her first child when she became homeless. Shelter personnel reported to child protective services (DCF in Vermont) that A.V. had a history of trauma and seemed to be struggling with mental health issues. DCF opened an investigation. Its social worker spoke to personnel at the shelter, a counselor from the local family services center who had worked with A.V., and personnel at the hospital. Although she didn’t interview A.V., the DCF investigator nonetheless determined there were significant concerns regarding A.V.’s mental health. Hospital personnel were asked to let DCF know when A.V. went into labor.

The hospital complied with DCF’s request and kept the case manager informed during A.V.’s delivery. As labor progressed, medical personnel expressed concerns that A.V. was not actively “pushing.” Meanwhile, DCF’s attorney filed with the family court an ex parte request for custody of the newborn — a request that was granted prior to the child’s actual birth. A.V.’s labor appears to have been long and difficult. At some point during the delivery, hospital staff contacted the Vermont Department of Mental Health (DMH) because they felt A.V. refused a C-section they believed necessary. DMH declined to assess her for involuntary treatment, so the DCF attorney moved for a court order mandating the C-section. A.V. consented in the meantime, rendering the motion moot. A.V. gave birth to her child, who was then taken into foster care based on the ex parte order issued during A.V.’s labor. It appears the child remained in DCF custody on the basis of the ex parte order for several months until the court ordered a transitional reunification.

Were you able to catch all the legal landmines here? I won’t go through them all, but plaintiffs’ attorneys have alleged the following violations of A.V.’s legal rights:

• First, the attorneys allege DCF had no right to investigate A.V.’s parental capacity because, until birth, there was no “child” under the statute authorizing child protective services investigations. And because DCF tried to intervene and obtain an order for a C-Section, the agency’s actions violated Vermont’s laws protecting a woman’s right to reproductive autonomy, including “the choice of whether, when, and how to give birth.”

• By investigating in a situation with no “child,” attorneys claim the agency violated A.V.’s right to privacy and her Fourth Amendment rights against unreasonable searches. Furthermore, because it obtained the ex parte order during labor but before birth, DCF wrongly seized A.V.’s fetus while she was pregnant.

• DCF also violated Vermont’s state version of the Americans with Disabilities Act, the attorneys assert, when it acted on allegations from the homeless shelter (presumably made by a mandated reporter) that A.V. appeared to be struggling with mental illness, According to the suit, DCF violated the disability rights law “by perceiving A.V. as having a disability and failing to make accommodations for her, and by denying A.V. the full benefit of its services because of her perceived disability.”

Under the plaintiff’s theories, the result in this suit could hinge upon whether a child who is in the process of being delivered into the world is a person or a fetus. Who knew child welfare law could be so complicated?

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In other news:

• In-depth reporting on troubles in Maryland’s child welfare system, with an increase in child maltreatment facilities and ongoing confusion regarding the statistics.

• A bill in Indiana’s legislature seeks to speed time to permanency for children. Its provisions include stricter timelines for reunification and rights of certain long-term caregivers to file termination of parental rights petitions.

• Oklahoma is considering a bill that would increase the standard for removing a child from the home from a preponderance of the evidence to clear and convincing.

• A bill in Texas would require the state to make active, not just reasonable, efforts to avoid removing a child from the home and to reunite the family.

• The trend to remove statutes of limitation for historic claims of child sexual abuse continues to grow, even as insurers flee the market.

• UNC Law has a new clinic in which attorneys and law students will represent families involved in dependency court proceedings. (GTHC!)

• New Mexico’s legislature is focusing on child welfare issues this session, and here’s the first in a series on that state’s struggles.

• Compliments of Zach Laris (i.e., I stole it from him), here are questions and answers that Senators posed to RFK Jr. as part of the nomination process for HHS Secretary. Some address child welfare, as child welfare policy and financing and immigrant children issues fall under HHS.

• Kentucky’s State Auditor is looking into a growing trend of foster children being housed in offices and hotels.

Thanks for reading!