December/January 2020Vol. 20, No. 10How to Help Agencies Stop Confusing Poverty With Neglect
Written by Jey Rajaraman, chief counsel, Legal Services of New Jersey, Edison, NJ
In New Jersey, like many places throughout the United States, most agency-involved interventions and removals arise from poverty, particularly the inability to access stable housing. Children are routinely removed from their homes because their parents struggle to pay the rent. Greater support from child welfare agencies for struggling families could significantly decrease the number of family separations. Federal and state laws do not permit child removals or separation based on impoverished living conditions. Under New Jersey law, before separating a family or otherwise exercising the state's parens patriae rights, child welfare agencies must do everything possible to keep the family together.
To reduce the prevalence of family separations, child welfare agencies should better understand and address the plight of impoverished families. A lack of housing, or housing instability, does not render a parent incapable of parenting his or her children. For example, while living in a motel or shelter or remaining in an apartment pending eviction is not ideal for children, such conditions do not necessarily mean the children are unsafe or at risk of harm. In most cases, the circumstances, conditions, and factors that lead to a family being in poverty are beyond the family's control and often stem from multigenerational poverty and racism.
Under both federal and state law, courts must first focus on whether the agency's removal was justified. Removal should only occur when there is actual harm to a child or when immediate removal is necessary to avoid imminent danger to the child's life, safety, or health. Courts also must ensure the agency complied with the reasonable efforts requirements under state and federal laws. In New Jersey, agencies typically must demonstrate they have "made every reasonable effort, including the provision or arrangement of financial or other assistance and services as necessary, to enable the child to remain in his home." When a court grants a removal application based on a lack of housing or other manifestations of poverty, the holding essentially equates a parent's state of poverty with neglect. This both misapplies legal requirements and causes unjustified and tragic trauma.
For the agency to meaningfully address poverty issues and the needs of struggling families, it must understand the ramifications for families living in poverty. For instance, it is unrealistic to ask a family to relocate to an apartment during a pending eviction when that family has poor credit or a criminal history, which could result in application denials. The agency should be aware of the legal and economic barriers to suitable and affordable housing and assist families in responding to those barriers, including helping them seek legal representation or advocacy.
Legal Services of New Jersey (LSNJ) recently initiated a pilot program to help facilitate that process. In the last year, LSNJ started to work directly with a county-level child welfare agency by accepting direct referrals from the agency so that LSNJ can quickly identify and assist with legal issues. These cases may involve issues such as pending evictions, unpaid child support, domestic violence, welfare denials, and barriers to accessing medical care and education. For each of these referrals, LSNJ also works with the agency to meet the needs of the family, which assists in preventing the loss of housing and helps agency staff recognize that unstable housing is not neglect and address the family's needs with poverty-informed services.
Agencies should establish internal mechanisms and protocols to meet families' needs through financial, transportation, and other assistance as well as tailored case planning. Child welfare agencies should be encouraged to coordinate with local legal services agencies, such as LSNJ, to identify legal needs and barriers and connect these families with necessary legal representation.
