December/January 2019Vol. 19, No. 10Leadership From State Supreme Courts

Written by Vivek Sankaran, director, Child Advocacy Law Clinic, University of Michigan Law School.

A few weeks back, I had a child protective hearing in Flint, Michigan. At the outset of the hearing, the judge noticed that the agency had failed to arrange for a father who was incarcerated to participate in the hearing. So without hesitation, she adjourned his case and admonished the agency for its failure to bring him to court. Then, she turned to another father, who was in court and was caring for his daughter, and informed him that as a nonrespondent parent (i.e., a parent against whom no allegations had been made) he was entitled to seek custody of his child. Finally, she spent the bulk of the court proceeding inquiring about the case service plan as it related to a cognitively impaired mother. She asked detailed questions about whether the agency had designed a plan that accommodated her disability under the Americans With Disabilities Act.

The court's inquiry into these three areas did not spark any reaction from the parties. But as I left the hearing, I was struck by a significant realization: Just a decade ago in Michigan, incarcerated parents were not routinely involved in cases. Nonrespondent parents were presumed to be as culpable as the offending parent, and the Americans With Disabilities Act played an inconsequential role in child welfare cases. In other words, my "routine" hearing would have looked a lot different.

So what sparked these dramatic changes in Michigan? These changes all occurred as a result of leadership from our state Supreme Court. Over the past decade, the Michigan Supreme Court has issued orders and opinions in dozens of child protective appeals, many of them in termination of parental rights (TPR) cases. The court has enforced constitutional rights, federal and state laws, and the requirement that clear and convincing evidence actually support a TPR finding.  Unsurprisingly, during this time period the number of children in Michigan's foster care system, along with the number of parents whose rights have been terminated, have decreased.

When people speak of judicial leadership in child welfare, they often refer to charismatic trial court judges who have implemented innovative reforms in their courtrooms. But such leadership must also be found on our highest courts. State supreme court justices play a pivotal role in safeguarding constitutional and statutory rights in child welfare cases. They do so by ensuring that child welfare appeals are heard by their court and by issuing thorough opinions that provide clarity and guidance to professionals in the field.

But they can do so much more. Through their leadership, they can spark long-overdue conversations between different constituencies within our system (e.g., agencies, courts, lawyers) and help craft the priorities of each state's Court Improvement Program. By speaking out about child welfare issues, they draw attention to an area of law often neglected by policymakers and the public.

The list of crises still confronting the child welfare system is long. Families lack quality trial and appellate counsel. Trial courts fail to routinely enforce the statutory requirement that agencies make reasonable efforts to reunify families. Agencies are slow to evaluate and place children with relatives, especially those living in another state. 

Those on our highest courts have the unique ability to spark the changes needed to support families in the child welfare system.