As mentioned in my introductory post, the focus of my research will be the discretion granted to government agents to make determinations about when a parent’s substance use disorder constitutes cause for removal of children. I would also like to address the discretion granted to make determinations about placement of those children. This post will outline and personify the issue in preparation for my next post which will dissect policy, statutes, and current procedure to identify the places where discretion leaves the current system subject to inconsistency.
I. Background and Context of the Problem
The right to raise your children without government interference is fundamental. Meyer v. Nebraska, 262 U.S. 390, 403 (1923). However, in critical situations the government has long reserved a right to take action to protect the interests of children in our society. One of these critical situations is when the parent’s substance use disorder affects their ability to care for the child. However, determining when the disorder actually constitutes neglect is largely up to the discretion of the agencies involved.
Society has long treated addiction as a personality defect; however, things are starting to shift. The U.S. Surgeon General released a report in 2016 which outlined the benefit of shifting to a public health approach when viewing substance use disorders. Even the terminology which is used to discuss the population affected by substance use has changed – the recommended description is no longer “drug addicts.” It is now, “individuals with substance use disorders.” The language used may seem like mere minutia, but it symbolizes a move away from faulting the individual for the substance use disorder that they have developed. Trauma accumulated from adverse childhood experiences that carry into adulthood often drive parents to find solace in the “escape” provided by substances. Many parents who have substance use disorders have no desire to hurt their children and they would never allow their children to suffer but for the disease that has a hold on them.
The drug epidemic has dramatically increased the number of children involved in the child welfare system. Unfortunately, government agencies aiming to protect children in California (and across the country) have not shifted to a more trauma-informed, rehabilitation focused approach or simply do not have the resources to do so. This takes us to the heart of the problem: how does the government effectively decide when substance use disorders deem a parent unfit? Does a substance use disorder automatically render a parent unfit to care for their child?
Currently, it seems that protocol is more or less very lax and leaves a lot of discretion for government agencies to decide when actual intervention is necessary, when removal is essential, and when overrides are acceptable. Overrides are when a social worker or decision maker in the welfare agency decides to deviate from what would be “proper protocol.” In almost all offices overrides are perfectly fine even if the override is rationalized after the fact. Policy and discretionary overrides allow a social worker to factor the outlined criteria against his or her own judgment and knowledge of the case. (Please see pp. 151-153.) The possibility of overrides is present throughout the entire process, from removal all the way until reunification. This often results in an inconsistent application of the law on a case-by-case basis and can inflict unnecessary trauma on the children and the parents involved with little accountability.
California Welfare and Institutions Code § 300 dictates removal, and California Welfare and Institutions Code § 309 creates guidelines for placement and asserts that a child who is removed should at least be placed with a relative unless there are no reasonable means to do so. Both of these statutes and existing policy give county agencies substantial discretion to make these critical determinations. In my next post I will thoroughly break down California WIC §§ 300 and 309.
II. Personification of the Problem
A lawyer once told me a story about a family that highlighted the inconsistency of application of the law when it comes to removal of children for substance use disorders. Consider a family with two mothers who are cousins by marriage – one mother was raised in a stable household and the other mother was raised in a tumultuous environment with heavy substance use.Continue reading “The Current Structure of the Child Welfare System in California Creates A “Damned if you do, Damned if you Don’t” System, Unnecessarily Inflicting Trauma on Those Involved”