Faria 1

Kayla Faria
Professor Rubinson
Mediating Family Disputes
30 November 2015
Time to Change: Mediation in Child Welfare

Introduction

The clock is ticking. In the child welfare system, time is not a family friend. As a student
attorney

representing impoverished parents facing intractable barriers that included

homelessness, unemployment, drug addiction and intimate partner violence, I so often just wanted
to buy them time. Counseling these parents in crowded courthouse hallways minutes before their
case numbers were called before judges with overburdened dockets, I wanted to buy them time to
tell their story, find safe, affordable housing, secure a living-wage job, and complete the recovery
treatment program. Skimming case files smack-dab in the throes of a system intent upon
reconstructing the past, I just wanted to buy these parents time now, so that their children might
have a future. For parents hauled into the child welfare system, time is one of the many things
working against them. I wanted them to have enough time to get their kids back and feel like they
were being heard. I wanted mediation to happen at a different time to change time in child welfare.

As a rising third-year law student, I became certified to litigate cases with Rhode Island Legal
Services, pursuant to Rule 9 of the Rhode Island Supreme Court. Practicing law full time, I handled
child dependency, neglect and abuse cases, appearing before three different judges and four
magistrates in Providence, Washington and Kent counties. RI R S CT ART II ADMIS Rule 9.

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This article critiques the federally-mandated timeline and reactive use of mediation in child
welfare cases, and then analyzes the therapeutic benefits and challenges of employing mediation
as a proactive, alternative response to filing a child neglect petition. It proposes a mediation model
that has the potential to change the legal culture of child protection, transform the relationship
between parents and the state, create judicial efficiency and deliver true permanency for children
by buying their parents time.

Background

Timelines in the child welfare system are dictated by the Adoption and Safe Families Act
(ASFA) of 1997. It requires states to file petitions to terminate the rights of parents whose children
have been in the states custody (e.g. foster care, group homes) for 15 of the last 22 months.2 The
ticking clock can start when the judge makes a finding of neglect or 60 days after a child is
removed from the home.3 And the decision to terminate parental rights (a necessary severance
before an adoption can take place) 4 often comes at the ASFA-mandated 12-month permanency
hearing.5 In this way, the federal law converts every day that a child spends in foster care into
one more tick of the clock in a countdown toward termination of parental rights.6

42 U.S.C.A. 675 (West).

Id.
4
Susan L. Brooks, Therapeutic Jurisprudence and Preventive Law in Child Welfare Proceedings:
A Family Systems Approach, 5 Psychol. Pub. Pol'y & L. 951, 956 (1999).
5
National Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with
Disabilities and Their Children, 103 (27 Sept. 2012).
6
Paul Chill, Burden of Proof Begone the Pernicious Effect of Emergency Removal in Child
Protective Proceedings, 41 Fam. Ct. Rev. 457 (2003).
3

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Hyper-focused on assigning parental fault, the ASFAs structure fails to account for the
unavailability of family preservation services 7 and the continuity component of permanency i.e.
the childs strong interest in maintaining a relationship attachment with parents.8 The federal law
also reimburses states for each adoption achieved, providing specific financial incentives for
states to increase adoptions. 9 It offers no financial incentives to achieve permanency through
reunification or any other means.10 Outlining short, rigid timeframes, the ASFAs dramatic
provisions make adoption the primary avenue to permanency, creating a hostile atmosphere for
parents and skewing child welfare matters toward expediting termination of parental rights,
thereby producing per-se anti-therapeutic consequences for children and families.11
Therapeutic jurisprudence centers the laws impact on the emotional life and psychological
well-being of legal participants, producing consequences that either promote (therapeutic) or harm
(anti-therapeutic) a persons mental, emotional, and/or physical health. 12 It also focuses on

It can take months to get the results of psychological evaluations and drug test. Sarah Clark
Bowers, Dependency Cases-Litigate or Mediate?, 70 Ala. Law. 428, 430 (2009). In many
instances, the departments funding tied to services does not immediately kick in, instead taking
time to process after the child welfare agency has made a referral for services. And, as a matter of
policy, some child welfare agencies cease to provide services and funding after filing a termination
of parental rights petition. In re Brooklyn M., 933 A.2d 1113, 1126 (R.I. 2007). Considered
together, all of these factors create a remarkably fast-ticking clock for low-income families.
8
Brooks, Therapeutic Jurisprudence, supra, at 956-9.
9
Amanda M. Walsh, Legal Permanency Isn't Everything: Readdressing the Need for Well-Being
Indicators in Child Protection Courts, 53 Fam. Ct. Rev. 326, 328 (2015).
10
Susan L. Brooks, The Case for Adoption Alternatives, 39 Fam. & Conciliation Cts Rev. 43, 45
(2001).
11
Susan L. Brooks, Therapeutic Jurisprudence and Preventive Law in Child Welfare Proceedings:
A Family Systems Approach, 5 Psychol. Pub. Pol'y & L. 951, 955-7 (1999); Susan L. Brooks, The
Case for Adoption Alternatives, 39 Fam. & Conciliation Cts Rev. 43, 45 (2001); Susan L. Brooks
& Dorothy E. Roberts, Social Justice and Family Court Reform, 40 Fam. Ct. Rev. 453, 454 (2002).
12
Christina A. Zawisza, Taking Hold of the Elephant in Child Dependency and Neglect Cases, 17
St. Thomas L. Rev. 531, 539-40 (2005).

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treating litigants with dignity, respect and fairness as a way to give the clients voice and
validation.13

Analysis

With a goal of permanency, child welfare should be an ideal legal field to operate
therapeutic jurisprudence. Instead, the law and practice of child welfare is woefully antitherapeutic 14 and highly adversarial 15 because the system is set up to funnel children into
adoptive homes. The Adoption and Safe Families Act invites an increased amount of highly
stressful, adversarial litigation, on the road to terminating parental rights - creating legal
orphans16 under the auspices of permanency.17 Permanency is the idea that every child deserves
a safe, secure, stable, and continuous home in which to grow up.18 The body of law guiding the
child welfare landscape is intended to further the goal of permanency. But, in the child welfare

13

Id.
Brooks, Therapeutic Jurisprudence, supra, at 952-5.
15
Brooks, Adoption Alternatives, supra, at 46-7.
16
In this context, the phrase legal orphan is used to describe a child whose parents rights have
been involuntarily terminated or relinquished, yet a permanent, adoptive family, has not been
identified or the adoption has been delayed. Raquel Ellis, Ph.D., Karin Malm & Erin Bishop, The
Timing of Termination of Parental Rights: A Balancing Act for Childrens Best Interests. Child
Trends Research Brief, Pub. 40, 13 (2009).
17
Susan L. Brooks & Dorothy E. Roberts, Social Justice and Family Court Reform, 40 Fam. Ct.
Rev. 453, 454-55 (2002); Susan L. Brooks, Therapeutic Jurisprudence and Preventive Law in
Child Welfare Proceedings: A Family Systems Approach, 5 Psychol. Pub. Pol'y & L. 951, 957
(1999).
18
Brooks, Therapeutic Jurisprudence, supra, at 953.
14

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context, permanency has come to represent an undue emphasis on adoption and adherence to a
rigid time frame, neither of which fits with a truly therapeutic approach to children and families.19
Permanency goals are aimed to end the uncertainty of foster care.20 But the state must
file a petition to terminate a parents rights, regardless of whether any adoptive parents have shown
interest or been identified to care for the parents child. The ASFAs emphasis on time spent in
foster care inherently reduces the substantive threshold of unfitness for terminating parental
rights - a unique deprivation generally assumed to be reserved for cases of severe abuse or neglect,
abandonment or incapacity. Its myopic focus on expediting a false conception of permanency is
a direct assault on this threshold.21
A survey of stretching across 18 different states revealed that judges biggest concerns
were shortened timeframes to terminate parental rights for foster children.22 Judges reported
feeling pressured to grant termination of parental rights in most or all cases because of the
ASFAs focus on timely achievement of permanency. 23 Because of the ASFA, the driving
force of permanency has displaced sensitivity to and respect for the complications of human
experience.24 Several judges have disclosed that 12 months is not enough time for substanceabusing parents to rehabilitate, while some judges have echoed these concerns for parents with

19

Brooks, Therapeutic Jurisprudence, supra, at 955.

3 Leg. Rts. Child. Rev. 2D 29:11 (2d ed.).
21
Chill, supra, at 463.
22
Raquel Ellis, Ph.D., Karin Malm & Erin Bishop, The Timing of Termination of Parental Rights:
A Balancing Act for Childrens Best Interests. Child Trends Research Brief, Pub. 40, 9 (2009).
23
Id. at 11.
24
Hugh O'Donnell, What's Wrong with the Picture: The Other Side of Representing Parents in
Child Protection Cases, 4 Appalachian J.L. 73, 80 (2005).
20

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mental health challenges.25 It seems certain that the ASFAs fast-tracking timeline exacerbates
the many barriers facing parents in a system stacked against them.
With the awesome power to shape the historical events of a case, the states ability to
make its child welfare case almost inevitably dwarfs the parents ability to mount a defense.26
Mediation is not a panacea to the inherent power imbalance characterizing the child welfare
landscape, but it is a way to move these difficult cases in a timely manner by extending the
temporal investment at the initial prevention stage, thus creating more therapeutic consequences.27
Preventive law is nearly absent from the scene of child welfare practice.28 Generally,
courts use of mediation in child protection cases is reactive, occurring only after a child has been
removed from the home. 29 Mediation is used to facilitate a negotiation between parents and
prospective-adoptive parents in the latter stages of a case as a reactive mechanism to develop a
post-adoption agreement, enter an adoption and avoid involuntarily terminating parental rights.30
Autonomy principles, underlying the fundamental foundation of mediation, dissipate in this
paradigm that strong-arms parents into signing off on adoptions, which are often the result of
inadequate or nonexistent preventive efforts.31 Under this framework, the maxim that a clients

25

Raquel Ellis, Ph.D., et al., supra, at 9.

O'Donnell, supra, at 77.
27
Sarah Clark Bowers, Dependency Cases-Litigate or Mediate?, 70 Ala. Law. 428, 429 (2009).
28
Donald N. Duquette, Looking Ahead: A Personal Vision of the Future of Child Welfare Law,
41 U. Mich. J.L. Reform 317, 350 (2007).
29
Catherine Anne Seal, Michael A. Kirtland, Using Mediation in Guardianship Litigation, Colo.
Law 37, 38 (2010).
30
In one study, 35 percent of judges reported an increase in uncontested termination of parental
rights and voluntary relinquishments as a result of increased use of alternative dispute resolution
programs. Raquel Ellis, Ph.D., et al., supra, at 9.
31
Brooks, Adoption Alternatives, supra, at 46-47.
26

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voice is really the loudest in mediation is rendered to pure lip service, something less than even
a trite colloquialism as parents are not allowed to really speak until it is time for them to surrender
(i.e. voluntarily terminate their rights) to the overwhelming power of the state.
Literary legal discourse on mediation in child welfare has historically deconstructed the
profound power imbalance between parents and the state.32 More recently, mediation experts have
focused on the trend to mediate child dependency cases. 33 Sharing many similarities, child
dependency and child neglect cases are treated in the same way in some jurisdictions.34 In other
jurisdictions, the distinction between dependency and neglect rests in fault. A child is neglected
when a parent fails to provide needed food, clothing, shelter, medical care or supervision to the
degree that the childs health, safety, and well-being are threatened with harm.35 Whereas a child
is dependent when he or she is without this proper care through no fault of the parent.36
Most states have established alternative dispute resolutions in lieu of litigating dependency
cases.37Attorney, social worker and mediator Sarah Clark Bowers argues the greatest reason for
the increasing use of dependency mediation is that it works.38 Agreements are reached on all
pending issues in 60 percent to 80 percent of dependency cases nationwide.39 Partial agreements
are etched out in an additional 10 percent to 20 percent of mediated cases.40 These agreements are

32

Amy Sinden, "Why Won't Mom Cooperate?":a Critique of Informality in Child Welfare
Proceedings, 11 Yale J.L. & Feminism 339, 354 (1999).
33
Bowers, supra, at 429-30.
34
3 Am. Jur. Proof of Facts 2d 265 (Originally published in 1974).
35
Child Welfare Information Gateway, Definitions of Child Abuse and Neglect. Washington, DC:
U.S. Department of Health and Human Services, Childrens Bureau (2014).
36
3 Am. Jur. Proof of Facts 2d 265 (Originally published in 1974).
37
Bowers, supra, at 428.
38
Bowers, supra, at 429-30.
39
Nancy Thoennes, What We Know Now: Findings from Dependency Mediation Research, 47
Fam. Ct. Rev. 21, 29 (2009).
40
Bowers, supra, at 428.

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more detailed and better tailored to families needs, thereby producing longer-lasting, better
results for children.41 Some evidence suggests that dependency mediation saves time and money
as these cases are less likely to result in subsequent contested review hearings.42 But, even looking
through a less evaluative, more transformative, lens, documented anecdotal evidence reveal
glimpses into the success of dependency mediation. For instance, one Superior Court judge,
presiding in a jurisdiction that offers dependency mediation, reported that the mediation process
has profoundly changed the legal culture of child protection.43 Agreements reached in dependency
mediation reduce the time that children spend in temporary care.44 But the benefits [of mediation]
for children and families go far beyond settlements reached.45
Interventions that feature an agreed-upon plan between families and child welfare agencies
strengthen a childs chances for a safe and secure future.46 In contrast, forever severing parents
legal ties to their children is a drastic measure, fraught with devastating emotional and
psychological consequences for parents and children. 47 Children benefit from maintaining
important family attachments, even if the attachments are faulty or family members have
significant deficits. 48 A focus on maintaining these attachments leads to more therapeutic and
preventive efforts aimed at family preservation or avoiding adversarial litigation.49

41

Hon. Leonard P. Edwards, Mediation in Child Protection Cases, 5 "J. Center for Families, Child.
& Cts." 57, 64-65 (2004).
42
Nancy Thoennes, An evaluation of child protection mediation in five California courts. Family
and Conciliation Courts Review, 35, 184-195 (1997).
43
Edwards, supra, at 63-64.
44
Josefina Muniz Rendon, Children First: A Collaborative Mediation Program, Hous. Law. 22, 23
(2000).
45
Bowers, supra, at 429-30.
46
Bowers, supra, at 428.
47
Brooks, Therapeutic Jurisprudence, supra, at 957.
48
Brooks, Adoption Alternatives, supra, at 47.
49
Brooks, Adoption Alternatives, supra, at 47.

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An adversarial approach - predicated on assigning blame - is complicit in the broken
machinery that is the child welfare system. Presuming that child welfare cases will be litigated
rather than mediated within the community (a coercion rather than treatment paradigm) tears at
the thin fabric that holds together many families and may actually make successful outcomes for
children more difficult to achieve.50
A study published by the Child Welfare League of America found that the adversary nature
of involuntary termination of parental rights proceedings and its length left the children in a limbo
of anxiety and heightened loyalty conflicts in relation to the parents, grief about losing them, and
hostility toward the agency seeking termination. 51 Many children who had been freed for
adoption via involuntary termination proceedings resisted their adoptions and returned to foster
care. 52 The rate of disruption an adoption process that ends after the child is placed in an
adoptive home and before adoption is legally finalized can range from 10 percent to 25 percent.53
Essentially, this means that as many as one in four children in an adoptive placement will be
bounced back into foster care. 54 This rate of disruption indicates that expediting the unique
deprivation of terminating parental rights has sown the seeds of a new predicament that threatens
long-term stability and permanency for children.55

50

Jolene M. Lowry, Family Group Conferences As A Form of Court-Approved Alternative

Dispute Resolution in Child Abuse and Neglect Cases, 31 U. Mich. J.L. Reform 57, 63 (1997).
51
Madelyn Freundlich, Expediting Termination of Parental Rights: Solving A Problem or Sowing
the Seeds of A New Predicament?, 28 Cap. U. L. Rev. 97, 106-07 (1999).
52
Id.
53
Child Welfare Information Gateway, Adoption disruption and dissolution. Washington, DC:
U.S. Department of Health and Human Services, Childrens Bureau (2012).
54
Id.
55
Freundlich, supra, at 110.

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Indeed, termination of parental rights still does not guarantee an adoptive placement.56
In the United States, 101,977 foster care children had a permanency goal of adoption and/or had a
parent whose rights were terminated, according to the most recent data compiled by The Annie E.
Casey Foundations KIDS COUNT project.57 Of these children, 31 percent waited three years or
more for adoption.58 Twenty-three percent of children in foster care languished for two years to 35
months. And an additional 33 percent of children in foster care waited one year or more for
adoption. Just 14 percent waited less than a year for adoption. Although foster care is proposed as
a temporary solution, children stay in foster care for an average of two years.59
But characterizing a childs time in foster care as waiting or a stay might be misleading.
The average foster care child will be moved from one foster care home to another at least once.60
One in four foster care children will be shuffled among foster care placements at least three times.61

56

Margaret Beyer Wallace, Lifelines to Biological Parents: Their Effect on Termination of

Parental Rights and Permanance, 20 Fam. L.Q. 233, 246 (1986).
57
Children 16 and older with a goal of emancipation and parents whose rights have been
terminated were excluded in this calculation. The Annie E. Casey Foundation National KIDS
COUNT, Child Trends analysis of data from the Adoption and Foster Care Analysis and Reporting
System (AFCARS), made available through the National Data Archive on Child Abuse and
Neglect.
58
Time waited is the last day of the fiscal year minus the date of a childs most recent entry into
foster care. The Annie E. Casey Foundation National KIDS COUNT Child Trends analysis of data
from the AFCARS, made available through the National Data Archive on Child Abuse and
Neglect.
59
U.S. Department of Health and Human Services, Administration on Children, Youth and
Families. Child Maltreatment 2002. Washington, DC: US Government Printing Office (2005).
60
The UPenn Collaborative on Community Integration, Removal from the Home: Resulting
Trauma, The Temple University Collaborative on Community Inclusion of individuals with
Psychiatric Disabilities 1 (2015).
61
Joseph J. Doyle, Jr., Child protection and child outcomes: Measuring the effects of foster care,
The American Economic Review, 96(5), 1583-1610 (2007).

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Nationwide, 35 percent of children in foster care had more than two foster care placements.62
These national figures illustrate that fast-tracking termination of parental rights does not
necessarily produce adoptions, much less achieve permanency.
Molly McGrath Tierneys directorship work with Baltimores Department of Social
Services is considered a national model.63 But Tierney called the child welfare agency a welloiled machine that does an outstanding job of taking other peoples children. 64 For Tierney,
dismantling these families has enormous consequences.
Kids that grow up outside of families they dont master the things that can only be
learned in that context, like who to trust, how to love and how to take care of yourself, and
that, frankly, does more damage than the abuse and neglect.65
Coercive state intervention often results in placing a child in a situation more detrimental
than he or she would be in without the intervention.66 Removing a child from an imperfect home
will not necessarily improve the childs welfare, but disturbing the familial relationship inherently

62

The Annie E. Casey Foundation National KIDS COUNT. Child Trends analysis of data from
the Adoption and Foster Care Analysis and Reporting System (AFCARS), made available through
the National Data Archive on Child Abuse and Neglect.
63
Medical Kidnap. Baltimore Child Welfare Director: Foster Care Is A Bad Idea Kids Belong
in Families. N.p. (2015), citing Molly McGrath Tierney, Rethinking foster care: Molly McGrath
Tierney at TEDxBaltimore 2014 (2014).
64
Id.
65
Id.
66
Santosky v. Kramer, 455 U.S. 745, 766, 102 S. Ct. 1388, 1401, 71 L. Ed. 2d 599 (1982).

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inflicts trauma to the child. 67 For this reason, children are generally raised best in their own
families.68
Removal can be just as traumatic as the harm of an abusive family.69 It can produce
feelings of betrayal, instability, rejection, loss of status and control, and mistrust leading to a range
of psychological issues and personality disorders.

70

The emotional, psychological and

neurobiological effects of the disruption can last a lifetime. 71 72 Foster care produces a host of
anti-therapeutic social outcomes for children, including: high delinquency rates, high teen birth
rates and lower earnings. 73 Through termination of parental rights, children can experience
increased anxiety, self-doubt and an irreparable sense of loss that can stunt development and lead
to behavioral problems.74 75

67

Marsha Garrison, Child Welfare Decisionmaking: In Search of the Least Drastic Alternative, 75
Geo. L.J. 1745, 1802 (1987).
68
Clare Huntington, Rights Myopia in Child Welfare, 53 UCLA L. Rev. 637, 678-79 (2006).
69
The UPenn Collaborative on Community Integration, supra, 1.
70
The UPenn Collaborative on Community Integration, Removal from the Home: Resulting
Trauma, The Temple University Collaborative on Community Inclusion of individuals with
Psychiatric Disabilities 1-5 (2015), citing: Kerry Schneider & Vicky Phares, Coping with Parental
Loss Because of Termination of Parental Rights, Child Welfare, 84(6), 819-842 (2005); Catherine
R. Lawrence, Elizabeth A. Carlson & Byron Egeland, The Impact of Foster Care on Development,
Development and Psychopathology, 18, 57-76 (2006).
71
Robert Racusin, Peter K. Isquith, Arthur C. Maerlender, Anjana Sengupta & Martha B. Straus,
Psychosocial Treatment of Children in Foster Care: A Review. Community Mental Health Journal
41(2), 199-221 (2005).
72
Delilah Bruskas, Children in Foster Care: a Vulnerable Population at Risk. Journal of Child and
Adolescent Psychiatric Nursing, 21(2), 70-77 (2008).
73
The UPenn Collaborative on Community Integration, supra, 1.
74
Judith Silver, Paul DiLorenzo, Margaret Zukoski, Patricia E. Ross, Barbara J. Amster & Diane
Schlegel, Starting Young: Improving the health and developmental outcomes of infants and
toddlers in the child welfare system, Child Welfare 78(1), 148-165 (1999).
75
Wallace, supra, at 246-47.

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This article seeks to illustrate how the same values of judicial efficiency and therapeutic
jurisprudence - which have thrusted the ascent of mediation in child access cases as well as
dependency mediation should galvanize a shift toward mediation as a proactive, alternative
response to filing a child neglect petition.
By incorporating differential and alternative responses, some jurisdictions have already
acknowledged the benefits of approaches less adversarial than traditional investigative
intervention. These approaches recognize the vast differences among alleged maltreatment and
focus on assessing the needs of individual families and responding accordingly with diverse
treatment responses, rather than using litigations essentialist machine that purports to eliminate
the vastly different barriers the same way for different families.76
With earlier assessment and intervention, the use of alternative response has saved financial
resources and improved the safety status of children by increasing service provision.77 Families
who received Alternative Response were less likely to have new child maltreatment reports than
control group families who were investigated. 78 And, although the initial costs of Alternative
Response were greater than traditional Child Protective Services interventions, the cost of services
provided and worker time was less, yet more effective in the long term.79 Still, differential and
alternative response programs alone are not enough to revolutionize a short-sighted child welfare
landscape.
The efficiency and effectiveness of these programs suggests that modern child welfare can
and should be improved by further integrating less-adversarial approaches. All juvenile and

76

Donald N. Duquette, Looking Ahead: A Personal Vision of the Future of Child Welfare Law,
41 U. Mich. J.L. Reform 317, 334-36 (2007).
77
Id.
78
Id.
79
Id.

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family court systems should have alternative dispute resolution programs available to the parties
so that trials can be avoided whenever possible, according to the National Council of Juvenile
and Family Court Judges.80 The Council has identified mediation as a best practice.81
Mediation is heralded for the capacity to improve and sustain relationships by holistically
addressing needs beyond the immediate legal issue, the subject of litigation.82 Its ability to deal
with multiple legal and non-legal issues prevents further disputes by promoting understanding.83
Parents who participate in child protection mediation report that they feel mediation helped them
understand what the case social worker will do and understand what they needed to do.84
For parents who may be facing a child neglect case, mediation clarifies issues, affording
them time and a more meaningful opportunity to address the underlying issues surrounding
potential neglect allegations. Functioning as either an alternative or a precursor to filing a neglect
petition or removing a child, mediation serves as notice to parents, buying them the time to access
the resources their families need and fortifying a meaningful opportunity to be heard.85 Parents

80

Bowers, supra, at 428.

Edwards, supra, at 63.
82
Andrea Kupfer Schneider, The Intersection of Therapeutic Jurisprudence, Preventive Law, and
Alternative Dispute Resolution, 5 Psychol. Pub. Pol'y & L. 1084, 1094-5 (1999).
83
Id.
84
Rendon supra, at 23.
85
As a substantive and procedural safeguard, mediation furthers due process. The Fourteenth
Amendment provides that no State shall "deprive any person of life, liberty or property without
due process of law." U.S. Const. amend. XIV, 1. Due process of law "guarantees more than fair
process." Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258 (1997). It is well
established that the Fourteenth Amendment's Due Process Clause protects parents' fundamental
liberty interests in the care, custody and control of their children. Troxel v. Granville, 530 U.S.
57, 65, 120 S. Ct. 2054, 2060, 147 L. Ed. 2D 49 (2000). These interests do not evaporate simply
because the parents have not been model parents or have lost temporary custody of their child to
the state." Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599
(1982); In re Kyle S., 692 A.2d 329, 334 (R.I. 1997). The physical removal of a child from
placement with parents is a drastic state action, extremely interfering with parents "essential" and
81

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report that unlike court proceedings, mediation enables them to be heard and understood, often
for the only time in the court process.86 In a survey of five California courts, more than 90 percent
of parents who participated in dependency mediation reported that they had a chance to talk about
the issues, felt others listened to and understood what they had to say, and felt mediation clarified
what they needed to do to have the child welfare agency close their case.87 The open, responsive
forum to ask questions and offer input furthers transparency and accessibility at the initial stage,
making it easier for all participants to understand.88
Through mediation, parents have an opportunity to tell their stories and participate in
planning for their child alongside child advocates and an impartial, well-trained, neutral mediator.
Mediation acknowledges that families are their own experts, with knowledge and insight into
which solutions will work best for them.89 It allows the participating parent to proactively explore
alternatives, create options and make decisions, rather than simply being the passive receptacle of
a lawyers advice and decision-making.90 In this way, it challenges the hierarchical structure of
traditional family law practice.91 This has important implications for children because parents who
are afforded the opportunity to tell their own story and feel listened to experience greater
satisfaction with the legal process and comply more readily with services.92 They are more likely

"basic" rights to raise their children. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212,
31 L. Ed. 2d 551 (1972).
86
Edwards, supra, at 65.
87
Thoennes, Child protection mediation, supra, at 184-195.
88
Edwards, supra, at 65.
89
Huntington, supra, at 678-79.
90
Tina Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L.J. 1545, 15812 (1991).
91
Id.
92
Christina A. Zawisza, Taking Hold of the Elephant in Child Dependency and Neglect Cases, 17
St. Thomas L. Rev. 531, 539-40 (2005).

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to reach an agreement when they feel a part of the resolution of issues affecting their childs
welfare.93
By empowering parents to share their perspectives, mediation simultaneously affords state
actors a chance to get a deeper understanding of the barriers and obstacles these families face,
which becomes especially critical in neglect cases that so often are rooted in systemic poverty.
Poverty is the single-most important predictor of placement and time spent in foster care.94 The
public child welfare system often equates poverty with neglect because it is rooted in the
philosophy of child saving the idea that children should be rescued from the ills of poverty by
taking them away from their parents.95
Todays child welfare system operates as a racist, classist system. 96 In child welfare
proceedings, minority families are disproportionately overrepresented relative to the wider
minority population.97 For example, black children accounted for 14 percent of the overall child
population, but represented 24 percent of all foster care children in 2013.98
Unlike the average white, middle-class social worker, most parents in the child welfare
system are poor, uneducated or members of minority groups, making the proceedings often
vulnerable to judgments based on cultural or class bias. 99 This reality calls into question the

93

Bowers, supra, at 428.

Brooks & Roberts, supra, at 453.
95
Id.
96
Brooks, Adoption Alternatives, supra, at 52.
97
Jane M. Spinak, Adding Value to Families: The Potential of Model Family Courts, Wis. L. Rev.
331, 347 (2002).
98
U.S. Department of Health and Human Services, Administration for Children and Families &
Administration on Children, Youth, and Families, Childrens Bureau, The AFCARS Report:
Preliminary FY 2013 Estimates as of July 2013; U.S. Census Bureau, Annual Estimates of the
Resident Population by Sex, Age, Race, and Hispanic Origin for the United States and States:
April 1, 2010 to July 1, 2013 (2014).
99
Santosky v. Kramer, 455 U.S. 745, 763, 102 S. Ct. 1388, 1399-400, 71 L. Ed. 2d 599 (1982).
94

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legitimacy of using fault to distinguish neglect from dependency as a rationale for adversarial
neglect proceedings. Biased state intervention in poor and minority families and removal of
children from their homes are fundamental flaws of the child welfare system.100 Family courts
often exacerbate class and racial disparities by prescribing solutions that fail to address the familys
problem e.g. expediting adoption as the medicine for curing all of the systems ills.101
Practitioners and scholars agree that the child welfare system must be transformed.
Applying a transformative mediation model in the context of child welfare could transform
relationships as participants shift to responsiveness and move from weakness to strength.102 By
trying to mediate at the earliest stage extending the ASFA timeline, the state shows a
commitment to empower these predominantly low-income families from its initial supportive
response, promoting communication that creates positive interactional shifts, 103 instead of
imposing familial trauma by hauling parents into the adversarial court process and then trying to
establish a cooperative relationship predicated on a false premise of equal power.104 This fosters
trust and renews collective public faith that state agencies and courts can produce just outcomes,
protecting the integrity of the family unit and the fundamental right to parent. But it requires a
fundamental shift toward a sensible, proactive family-centered service orientation designed to

100

Susan L. Brooks & Dorothy E. Roberts, Social Justice and Family Court Reform, 40 Fam. Ct.
Rev. 453, 454-55 (2002).
101
Id.
102
Robert A. Baruch Bush and Sally Ganong Pope, Changing the Quality of Conflict Interaction:
The Principles and Practice of Transformative Mediation, 3 Pepp. Disp. Resol. L.J. 67, 80-4
(2002).
103
Id.
104
Sinden, supra, at 354.

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address the initial circumstances that led to state involvement, rather than continuing to react by
imposing a demented obstacle course for low-income, minority families with little resources.105
Vulnerable families need to be able to access the full range of services as early as
possible.106 But these families have very little support to help them prevent involvement in the
child welfare system and remedy the underlying causes triggering intervention.107 Agency risk and
safety assessments in 22 out of 35 states did not capture the underlying family problems, according
to a study conducted by the U.S. Department of Health and Human Services Child and Family
Service.108 It is no wonder that a revolving door exists in child welfare practice as about onethird of cases are repeatedly referred to Child Protective Services.109 Too often the underlying

105

In analogizing the child welfare system to a demented obstacle course, Hugh O Donnell
wrote:
The uphill course must be completed by a specified time or else: whether the runner is on
crutches, carrying a heavy backpack or un-encumbered. The number and nature of the
obstacles is subject to daily change, and may or may not have anything to do with the
original problem that forced the runner onto the course. All along the way there are people
screaming at the runner that he or she has no one but himself to blame for the situation.
When a misstep is made or an obstacle is not negotiated with requisite grace or enthusiasm,
the blamers gather to discuss if new obstacles are called for or whether the runner must
start over. Even if none are added, notes are taken, reports are generated and salaries and
fees are paid. The chorus of blaming is incessant, except of course, when the course
managers pause at seminars, continuing legal education classes and bar meetings to tell
themselves and the world of their strong commitment to protecting the weak and the
vulnerable. Hugh O'Donnell, What's Wrong with the Picture: The Other Side of
Representing Parents in Child Protection Cases, 4 Appalachian J.L. 73, 87 (2005).

106

Brooks & Roberts, supra, at 455.

Brooks, Adoption Alternatives, supra, at 46-47.
108
Duquette, Looking Ahead: A Personal Vision of the Future of Child Welfare Law, 41 U. Mich.
J.L. Reform 317, 334-36 (2007).
109
Id.
107

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problems, strengths and weaknesses are not understood before a treatment response is
recommended.110
Mediation provides a setting wherein the input and strengths of participants develops
emergent knowledge, a synergy of creative solutions. 111 A strength-based model, mediation
resonates with the idea, long-espoused by social workers, that lasting solutions to problems are
ones that grow out of, or can fit with, the knowledge, experiences, and desires of the people most
effected.112 Put more simply, mediation empowers families to look within to find solutions.113
Greater insight into the lives of these families garnered via mediation - empowers and more
properly situates front-line social case workers to assess families needs and tailor appropriate
services. Through mediation, family service plans and the processes of accessing various
community resources can be meaningfully outlined with greater specificity and detail.114
With earlier, less-invasive, better-tailored intervention, the mediation process could help
to curb defensive social work, i.e. the tendency of social case workers to base removal decisions
on fear fear of job discipline, fear of civil (and even criminal) liability, and especially fear of
adverse publicity, the source of unnecessary removals or foster care panics.115 116

110

Id.
Bowers, supra, at 428.
112
Huntington, supra, at 678-79.
113
Id.
114
Bowers, supra, at 428.
115
Chill, supra, at 459.
116
Foster care panics refer to the huge, sudden increases in (foster care) placements that follow
intensive media coverage of the death of a child who was known to the system. Richard Wexler,
Take the Child and Run: Tales from the Age of ASFA, 36 New Eng. L. Rev. 129, 146 (2001).
111

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As an intervention that replaces or delays initial removal, mediation nurtures childrens
rights not to be removed from daily intimate association with parents. It increases the chances that
children will be raised in stable, enduring family units by the parents who brought them into this
world, particularly in light of the sequentiality effects (i.e. the self-reinforcing, status quo bias
endemic to human decision-making) considerable impact on child protective proceedings.117
118

This serves the strong public policy interest in preventing unnecessary removal and satisfies

the parens patriae interest in preserving natural familial bonds and continuity of childcare.119

Proposed Mediation Model

The long-established nexus between poverty and child neglect makes these cases ripe for
mediation, which should be the primary avenue for handling an allegation of child neglect. Instead
of a Child Protective Services investigation leading to the states child welfare agency filing a
neglect petition with the court or removing a child from the home, the child welfare agency should

117

Peggy Cooper Davis & Gautam Barua, Custodial Choices for Children at Risk: Bias,
Sequentiality, and the Law, 2 U. Chi. L. Sch. Roundtable 139, 146-47 (1995).
118
The sequentiality effect (the idea that interim decisions become self-reinforcing) is
reinforced by the child development principle that custodial change becomes inherently and
increasingly detrimental as the existing custodial arrangement becomes more longstanding. In
the current child welfare landscape, this means that a child should remain in the foster care
placement, regardless of whether the child should have been placed there initially. By choosing
not to remove in the initial response, this decision can too become self-reinforcing and solidify
the integrity of the family unit. Other scholars have described this as a tracking phenomenon
whereby children who are not with their parents at the start of a child protective proceeding are
likely to remain at home, but those removed initially are likely to remain in state custody for a
long time. Paul Chill, Burden of Proof Begone the Pernicious Effect of Emergency Removal in
Child Protective Proceedings, 41 Fam. Ct. Rev. 457, 460-61 (2003).
119
Theo Liebmann, What's Missing from Foster Care Reform? The Need for Comprehensive,
Realistic, and Compassionate Removal Standards, 28 Hamline J. Pub. L. & Pol'y 141, 160-61
(2006).

Faria 21
request that parents participate in mediation. A parent can either volunteer or refuse to attend the
mediation. By refusing, the parent rolls the dice, taking his or her chances in a court of law as
the child welfare agency can then file a petition.
Participants in mediation will have an opportunity to tailor a specific agreement that
incorporates the process for accessing certain applicable services and community-based resources,
including: drug treatment, parenting classes, housing assistance, and counseling. Within the
agreement, participants can sketch out the timing and location of various appointments and visits
in light of public transportation, employment and other scheduling concerns. More than just a
schedule or checklist, the mediated agreement can also address other disparate but interrelated
issues within a case e.g. individualized education programs, immigration status, public benefits
barriers, substance abuse, domestic violence and mental health issues.120
Developing a holistic agreement together allows all participants a chance to see one another
as whole persons with strengths and challenges. Mediation may not result in an agreement, but the
foundation of the relationship between parents and the child welfare agency is better informed
through the voluntary mediation process.
If the participants create an agreement in mediation, but the parent later continues to act in
a way seriously detrimental to the child (reneging the agreement), then the department can file a
child neglect petition. If the mediation does not result in an agreement, then the child welfare
agency can still file a petition. While this replicates a power imbalance that exists in the courtroom,
the mediation process still benefits families by notifying parents, buying them some time to access
resources, speak with legal counsel, and make arrangements to remove the barriers that led to state

120

Murphy and Rubinson, Family Mediation: Theory and Practice 76 (2d ed. 2015).

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involvement. This preserves a more meaningful sense of due process, preventing issues from
multiplying and escalating to removal, thereby furthering the best interests of children.
Taking place within the shadow of the law, 121 mediation works best when each party
is fully advised of her legal rights. 122 A process that features attorneys protecting parents
fundamental liberty interests is crucial to the success of mediation whether that is defined in
purely pragmatic, evaluative ways or more abstract transformative, relationship-centered terms.
As one professor wrote, Having lawyers present at the mediation, and encouraging mediators to
explore the law with (parents) makes it more likely that the vulnerable will gain whatever
advantage the law allows.123 This is particularly critical in child welfare given the inherent power
imbalance between participants. Even, or perhaps especially in the less-adversarial context of
mediation, parents and children need to know and understand their rights and be prepared to resist
an overreaching social agency when appropriate.124
A mediation that promotes the best interests of children allows parents children to
participate and mandates that they each have an attorney who will advocate for their expressed
interests during the mediation process. In planning for a childs future, it is critical that a childs
point of view be understood and given great weight.125 To mediate without the presence of the
childs voice directly or indirectly - is to deafen the capacity of child welfare mediation to truly
serve the best interests of children.

121

Robert Mnookin and Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of
Divorce, Yale Law Journal 88, 968 (1979).
122
Linda D. Elrod, Child Custody Practice and Procedure 1608 (2004).
123
Stephen N. Subrin, A Traditionalist Looks at Mediation: Its Here to Stay and Much Better
Than I Thought, 3 Nev. L.J. 196, 221 (2002/2003).
124
Duquette, supra, at 350.
125
Bowers, supra, at 428.

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Similarly, a process that solely includes attorneys and families mutes a systematic expertise
in community-based social welfare programs. A social work perspective is necessary to effectively
mediate and address the underlying issues of child neglect. Courts have found that it is
unreasonable to rely wholly on a family who, despite being experts in their familial dynamics, may
lack the expertise and perspective (to) diagnose their own problems and then conjure up effective
treatment strategies.126 This common-sense acknowledgement is sufficient to justify the presence
of a social case worker in child welfare mediation.

Challenges
Confidentiality in mediation enables participants to express themselves without the fear
that what they say will be later used against them in a court proceeding.127 The open dialogue
encourages parties to discuss and disclose anything that would facilitate the resolution of
controversy, sharing circumstances and possibilities to generate more options for resolving
underlying issues. 128 Generally, confidentiality does not extend to statements or allegations of
child abuse because of the strong public policy interest to protect children from harm. The nature
of a child welfare case makes it more than likely that these concerns about confidentiality will
arise. Like dependency mediation, a child neglect mediation may be best served by allowing an
op-out of the confidentiality requirement, but this op-out must be thoroughly explained with clear
guidelines at the initial mediation introduction.129

126

In re Natalya C., 946 A.2d 198, 204 (R.I. 2008).

Bowers, supra, at 428.
128
Robert Rubinson, Client Counseling, Mediation, and Alternative Narratives of Dispute
Resolution, 10 Clinical L. Rev. 833, 853 (2004).
129
Bowers, supra, at 428.
127

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The primary drawback to mediating child neglect cases centers around the inherent power
imbalance between parents and the state. In the mediation context, this power imbalance threatens
family empowerment, which requires that families have the freedom to make their own decisions
and choices.130 Still, this power imbalance is also vividly pronounced in the courtroom where
disempowerment through disenfranchisement (i.e. fast-tracking termination of parental rights)
remains the undercurrent of child welfare law. The longstanding tradition of an adversarial court
process has not mitigated concerns about coercion or lack of autonomy, empowerment or due
process in child welfare. Perhaps it is time that the child welfare system mediate to mitigate the
anti-therapeutic consequences associated with the traditional practice of child protection. As some
social case workers have said, Mediation (unlike trial) has never made things worse. 131
Mediation offers significant benefits as an early-intervention alternative to a litigation process
geared to sever natural family bonds. The legitimate space of mediation empowers parents to offer
valuable insights, create solutions, make decisions, tell their stories and access the resources their
families need.
In the arena of child welfare, mediation makes the goal of permanency real. Its a precise
intervention that does not irreparably harm the children who have allegedly been harmed by
neglect or by merely growing up poor. For impoverished, struggling parents, it offers a sense of
dignity and societal investment in their families lives.132

130

Huntington, supra, at 678-79.

Thoennes, Child protection mediation, supra, at 184-195.
132
Bowers, supra, at 428.
131

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Conclusion

The adversarial court process is complicit in the broken machinery of the child welfare
system that makes poverty synonymous with child neglect, and then fast-tracks termination of
parental rights. Removing children from families, placing them in foster care and terminating their
parents rights traumatizes children and, in the aggregate, fails to establish permanency, the
purported goal of the modern child welfare system. Therapeutic jurisprudence should galvanize a
shift in child welfare law that makes mediation a proactive, alternative response to filing a child
neglect petition. An effective child neglect mediation features parents, a social case workers,
attorneys for parents, children and the child welfare agency, and, if they wish to participate,
children. In child welfare, the transformative mediation process provides a space to approach
issues holistically, develop emergent knowledge and improve relationships to further a childs best
interests. Mediation will not eliminate the inherent power imbalance parents and the state, but it
may create positive interactional shifts, more properly situate social case workers to assess
families needs and tailor appropriate services, and deliver greater compliance by building on
families strengths and providing ample opportunity for specific remedy and prevention.133
Adversary child welfare proceedings require large time blocks and, often, multiple
continuances, but early-intervention mediation significantly saves court resources, while
conserving the time of judges, social workers and attorneys by buying poor families time to access
the resources their families need. 134 Family courts cannot delay family-friendly reform that
empowers the voices of resilient families and promotes the emotional and psychological well-

133
134

Bush & Pope, supra, at 83-84.

Bowers, supra, at 428.

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being of children by temporally investing in them at the initial stage. The time to mediate is now.
Its time to change child welfare.