Child Removal

I am covering some cases for another sole practitioner while she's on maternity leave. She is handling several cases for the Office of Public Advocacy, contracting to represent people who would otherwise be represented by staff attorneys. As part of this, I am handling some children's cases for the first time since I was in the public defender's office. For those of you not in the know, children's cases are the cases in which social workers remove kids from a home because they are in danger, etc. In Alaska, those cases are abbreviated CINA (pronounced "China) cases, short for Child In Need of Aid.

What I want to know is why we decided to give the state such authority over how we deal with our children. The typical rejoinder is along the lines of "Well, children shouldn't be in a home where they are being abused", the abuse typically understood to be physical or sexual. I don't really have an issue with that statement as a principle, but gradually, we have expanded the definition of 'harm' to include a great deal of matters and have made the state too powerful in these cases. Domestic violence and drug use are used to justify removing kids from the home. Remember that domestic violence, as statutorily described, includes situations in which someone is placed in fear. So, a raised voice can count as grounds for a conviction for domestic violence (I've seen it happen, but not to my clients). Why should someone's kids be taken out of the house because of an argument? Why should parents have to go through some classes because of an argument in front of kids? Why should the state have such authority? Beats me.

Drug use is another ground that causes me to wonder where we went so nuts. Granted, when you raise this issue, most people picture the scene in Trainspotting with the parents lying in a heroin-induced coma while toddlers meander around the room in disgusting diapers. (That's not the only memorable scene from Trainspotting, but it is the one most applicable here anyway.) A parent under scrutiny of OCS can have a child removed for a positive drug screen, despite the fact that we have yet to quantify any drug amount/drug effect other than alcohol. We have studied the effects of alcohol to the point that we know what it means for someone to have a .05% blood alcohol content, , a .10% BAC, whatever. Scientifically, though, we have no idea what it means to have a THC level of .05%, or a cocaine level of .02%. Nobody knows, but we just remove kids anyway.

Now, let me be up front: there are few ways to destroy your life or your relationship with your kids as thoroughly as to abuse drugs. I am not seeking in any way to apologize for or justify drug abuse. But we take kids away from their parents simply because parents choose to put certain chemicals into their body and we have no idea how much the parents' behavior is in fact affected by the drugs. Furthermore, we take a zero tolerance approach when we do not do so with the most dangerous drug of all: alcohol. Imagine the state removing your kids because they found that your BAC was .04% (what it would be after consuming roughly 2 beers within an hour). You would be justifiably outraged, yet the idea that one can use chemicals recreationally is absolutely rejected by the federal and state governments in this country. (Jacob Sullum, though, shows the complete hypocrisy of the government in his book Saying Yes: In Defense of Drug Use. It is a very though provoking book and I would read it again if I could remember to whom I loaned it.) Interestingly, part of the reason we have no information to quantify the effects of various controlled substances on the body is because the federal government does not allow such testing.

The other interesting thing is that I have never represented a parent who harmed their child in any way when that parent was under the influence of solely marijuana (or cocaine or methamphetamine, for that matter). Yet I have represented a lot of parents and other relatives who have beaten, tortured, forcibly sodomized, or even killed their kids when they were drunk. Alcohol remains legal, yet marijuana, cocaine or meth are not. I was taught in civics class that the difference would be because the legislature has carefully examined the different aspects and made a careful judgment on the matter. My experience teaches that the difference is because the alcohol lobby is more respectable, older, and a lot wealthier. Maybe it's just me, but I would think that it is a lot worse for kids to be put into foster care than to stay at a house where mom or dad smoke some pot or do some coke.

At this point, the typical rejoinder is that a person on drugs is not really aware of his or her surroundings and could potentially harm the child, either directly or through neglect. Maybe. As I note above, I have seen a lot more kids injured because the parents were drunk than because they were stoned or high or tripping. But let's grant the argument for argument's sake. What is being argued is that we are taking kids away from parents because of what the parents could do, not because of what the parents have actually done. Now, if a parent is beating a child, the argument is much stronger that the child needs to be removed in order to prevent further beatings. Yet removing a child because mom or dad could harm the child while on drugs does not make a great deal of sense as a general policy. We cannot take away somebody's liberty based upon what they could do, but only based upon what they have done. We cannot force someone to pay a monetary judgment except for previous harms.

Courts do grant injunctions when the future threat appears to be irreparable and there is no other remedy. But while temporary injunctions are easier to get than permanent orders, it is still harder to get equitable relief in civil cases than in children's cases. Why? Why is it so easy for OCS to invade our homes, take our children, and force us to kiss their ass before we get our kids back? Its just something that's been going through my mind as I have been dealing with some of these cases.

Comments

[Kathryn Benson]

There are individuals out there
that arent brainless souless
creatures used by the state after
all, how refreashing.
Enjoyed your article, over a decade ago, the state took my 7 yr old child (tender years)
Question? Did I drink alcohol?
no not a drop. What about drugs; no, did'nt even smoke cigerettes. Did I beat my child?
no, never laid a hand on him or
pinky finger.
Did I abuse my child in any way?
No, I loved my little one and gave him lots of affection, & attention.
Did I properly provide for my child?
Yes he was nourished and well pro-
vided for.
Did I have a criminal record.
No, unless you include the green
wax lips I stole when I was 6 at
harper drug store 1 week before
Halloween.
Why did I loose my first born and only child at the time?
Why did the state of Alaska give
a sweet child who cried for his
mama to his bio-father he did not
know who was a known drug addict/
dealer and alcoholic.
This father beat him, starved him (kept no food in the house) no proper winter wear (fairbanks winters can become below freezing) yelled and screamed at him daily, isolated him.
His dad lit up crack pipes,enhaled lines of cocain, and on days he needed a break from all of the drugs, got high and laid around all day.
Chase was made a slave and did
all the housework while his father
did nothing. My son is 19 now and enraged and ready for justice.
Why did this happen?
Chase was raped right before he turned 7 by his stepfather,I his mother called police, social workers,doctors, counselors anyone I could for help. Nothing seem to
help for I still had a suidcidal
little boy on my hands.
I owed my own home, business, car etc...........
Instead of helping they started to
say I was the problem and that maybe I was trying to obtain full
custody of my child, when the perpertrator was not the childs real father and had no biological ties to the child. The state then tried to force me to let my child visit with his stepfather.
This upset me so I threatened to harm the molestor myself if something was not done and poof next thing I know I,m locked up in the loony bin labeled maybe crazy,
but we are not sure at this point she seems to be really agitated.
Yeah! who would'nt want to kick some a__!
Chase goes from foster home to foster home, when he should of just
been left alone and sent home to his mother.

The state never trie to reunite a mother and her child, even though
I've done backflips effortlessly through hoops of fricken fire, they
still would'nt even let me talk to him. I went to all of the counseling , psychiatrist, Psychological evaluations,that say um she is not
crazy just very pissed off, something along that line. The state decided that my behavior & how I spoke was not that of a good
parent so they took him and I am
like "Where's toto what land am I
am " The good news is there is an
atty willing to sue the state on behalf of my son who is 19, I just
need a few days where I can go and
copy all of the paperwork at the courthouse and send it to him as he is out of Anchorage.

The state has too much power.
Ahhh I feel so much better now
just venting, thankyou so much.

Kathyrn Benson

P.S.
Excuse the run on sentences, lack
commas,punc, etc..

[Monika Erhart]

my husband have had our two children taken by ocs and have been in foster care for 4 months. they are 7 and 5. we are told that we have neglected our kids because we have had alcohol related offenses in the past. we have been attempting to follow all the orders of the ocs monsters and have spent a college touition on treatment, lawyers, ankle monitors and lost work. we have 4 children and have raised 2 of them to adulthood without any major problems. now with the attachment to the cina laws we don't have to neglect are children to have them kidnapped. the potential of harm is enough for the state and ocs. we all have the potential of harm by just getting out of bed. these children are my life and now just turning 50 are my last babies. my heart is breaking and we don't know how to fight them. our case was built and we were conficteds before we even arrived in front of the judge. please does anyone have any suggestions or stories of thier own. monika and gerald marshall

[Kaqthryn Benson]

I wrote the post before yours about the abduction of my child by the state some 12 years ago I am now writing a novel entitled
CHASE and have several publishing companies requesting the first
chapter which I have sent and am waiting their response I have an atty who might help you he is in sika and he is considering taking on the state on behalf of Chase.
Chase had returned home but he is pretty much tierd of life now and I am one furious mother, deciding ot take my anger our by writing and sueing and helping the likes of you.

Refuse to talk to a social worker or anyone related to the state without an atty present look pro bono record everything, let them know you are recording everything they are saying! as they write down everything you are saying and twist in around and add some new words you did not say. I swear they work for the dark side. Write everything down they say especially when you see them writing down what you say, they will become upset and refuse you to write or record do it in secrete, you can play it back to them to their supervisors etc can not be used in court however it has amazing power get an atty not one from the state MOST STATE ATTY DO NOT WORK IN YOUR INTEREST ONLY PRIVATE ONE DO, TRY TO FIND PRO
BONO ADVERTISE NATION WIDE ON WHAT THEY ARE DOING ON THE INTERNET ETC. DO WHAT YOU HAVE TO AS LONG AS IT IS LEGAL TO GET THE FUNDS FOR A PRIVATE ATTY THE ONLY WAY TO GET YOUR CHILD BACK IS WITH LOTS OF MONEY AND WITH A PRIVATE ATTY,
JOIN A CHURCH, GO TO EVERY AA MEETING LEAD THE MEETING HAVE ALL KINDS OF LETTERS ON HOW YOUR TREATMENT IS GOING , GET LETTER FROM FRIENDS , RELATIVES AND WHOEVER SAYING YOU ARE DOING GREAT HIRE A PRIVATE ATTY AND YOU WILL SEE THE FACES OF THE SOCIAL WORKERS TURN PALE.
MY SONE IS 19 NOW AND WOULD LIKE TO SAY A FEW CHOICE WORDS TO THE SOCIAL WORKERS THAT DESTROYED HIS LIFE THEY ALL HAVE LEFT THE STATE NOTICE HOW THEY NEVER STAY AROUND TOO LONG YOU GET PASSED FROM ONE SOCIAL WORKER.