"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things."

~ Niccolo Machiavelli, historian and writer

Saturday, July 21, 2012

"In Need of Services" = "In Need of Protection"?

A very interesting decision out of the US, in which the Indiana Court of Appeals reversed a lower court finding that a mother had neglected her teenage daughter by refusing to pick her up from an emergency shelter.

Wait a minute, that sounds like abandonment, doesn't it?

Maybe but perhaps not if you have a good enough reason. In this case, the mother refused to take the girl home until she received counseling services.

Apparently the teenage daughter had a lot of behavioral issues, which the mother (a single parent) was attempting to address. And apparently it was the policy of the state's Department of Child Services to use a portion of state law that says parents are "unable" to provide necessary care as legal justification to "help" them secure services for their children with mental illness or a developmental disability.

In other words, in plain English, the government's policy was to substantiate neglect findings against a parent if the parent had legitimately been unable to access the services the child needed. Unable to access services because the government had, you know, refused to provide them.

Sound familiar?

The mother had twice called police after her daughter had become physically aggressive. Not surprisingly, police contacted DCS officials, who initiated an assessment and when, after the second incident, the woman refused to bring her daughter (who by that point had been diagnosed with oppositional defiant disorder) home until she received counseling, a petition was filed with the court alleging the girl was a "child in need of services" (which here, in Nova Scotia, we would refer to as a "child in need of protection") due to the mother's failure to provide necessary care.

Even though the mother had taken the child home a few weeks after first being requested and despite the fact that the Department's own investigation showed that the child, not the mother, had been the aggressor in the altercations, the girl was found to be "in need of services". To add insult to injury, the mother was ordered to participate in services and and pay DCS $25 per week for reimbursement of service costs.

And yet perhaps the most scathing indictment of the system comes with this revelation - even after DCS became involved, the mother had to contact her own doctor and schedule a psychological evaluation for her daughter. Why? Because DCS would could not schedule one for three to six months.

But something like this couldn't/wouldn't happen here, right?

Nah, I give my readers more credit than that. You know the score.

In fact, this could well be a play right out of Nova Scotia's playbook. At a minimum, chances are most of us at least knows someone who knows someone who found themselves in a similar situation.

Whether the child is a minor (and therefore governed by Nova Scotia' Children and Family Services Act) or an adult (in which case, the Adult Protection Act would come into play), if a family is unable to get necessary services, they are in reality left with no choice but to throw up their hands, call the Department of Community Services and tell them just that - we can't do this anymore. At which point, their child will be taken into care and the parent(s) will lose all legal rights to say where their child will live, with whom or how they will be cared for.

Thank goodness for the good sense of the Court of Appeals in the Indiana case, who recognized that families who are trying to advocate for and help their children should be applauded, not "condemn[ed] through coercive action".

Still, despite the outcome in that case, we are left wondering ... why?

Why is this happening? In the US? In Canada?
A Times investigation found there is a multi-agency failure to provide more intensive services for children with severe mental illnesses or disabilities. Children who do not receive needed services may enter the court system as juvenile delinquents or as children in need of services. Some mental health professionals have advised parents to "abandon" their children in order to secure services.
And although one would hope that things will at least change for the better for families in Indiana, that both the courts and the Department of Child Services will take note of this decision, the Department, at least, seems to require some remedial assistance with reading comprehension.
DCS spokeswoman Stephanie McFarland said the agency will not change any of its policies relating to CHINS cases as a result of the Court of Appeals opinion. She said DCS' attorneys interpreted the judge's ruling as a need for more evidence.

"It looks like DCS tried to help, tried to provide services," McFarland said.
Apparently the Court of Appeals disagreed.

But how do they even begin to justify their position? Are some entities really only capable of hearing what they want to hear?

Still, surely the courts will call the Department to account, right?
Lake Juvenile Court Judge Mary Beth Bonaventura said she will not alter how she handles CHINS hearings because of the Court of Appeals opinion. The judge said she believes the Marion County case is too fact-sensitive to prompt change.
One can only hope that some juvenile court judges will see things differently. If not, we should be able to at least be able to take consolation in the fact that their appellate court will set them straight yet again.

However, I do agree with Joel Schumm, a clinical professor of law at Indiana University's Robert H. McKinney School of Law in Indianapolis, who noted that the decision puts judges in a difficult position because they may have parents before them who desperately need help. The valid implication being that they may really have no legal way to offer that help, to force the Department to provide the necessary services.

It's enough to make one believe that talk is, indeed, cheap.
WHEREAS the family exists as the basic unit of society, and its well-being is inseparable from the common well-being;

AND WHEREAS children are entitled to protection from abuse and neglect;

AND WHEREAS the rights of children are enjoyed either personally or with their family;

AND WHEREAS children have basic rights and fundamental freedoms no less than those of adults and a right to special safeguards and assistance in the preservation of those rights and freedoms;

....

AND WHEREAS the basic rights and fundamental freedoms of children and their families include a right to the least invasion of privacy and interference with freedom that is compatible with their own interests and of society's interest in protecting children from abuse and neglect;

AND WHEREAS parents or guardians have responsibility for the care and supervision of their children and children should only be removed from that supervision, either partly or entirely, when all other measures are inappropriate;

...

AND WHEREAS the rights of children, families and individuals are guaranteed by the rule of law and intervention into the affairs of individuals and families so as to protect and affirm these rights must be governed by the rule of law;
...
Should anyone mistakenly think that this story is a one-off, a fluke where the system failed to work, I would suggest you check out some of these heartbreaking stories, part of a "Children in Peril" series run by the Northwest Indiana Times.

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