Three pending federal bills “call for increasing CPS [Child Protective Services] investigations of minor marks on children… The proposed bills should raise special concerns for families of children with rare medical conditions and disabilities” [Diane Redleaf] Argument: negotiations for kinship care in the shadow of threatened CPS proceedings amount to a parallel, hidden foster care system [Josh Gupta-Kagan, Stanford Law Review via Diane Redleaf] “Why Jailing Parents Who Can’t Pay Child Support Is Questionable Public Policy” [Hans Bader, FEE]
Thank you to Naomi Riley for including me in her WSJ piece Thursday on a truly bad New York scheme to empower birthparents whose parental rights have been terminated to petition nonetheless for court-ordered visitation. The quotes from me:
In many cases adoptive parents do arrange with birthparents for some kind of contact after an adoption is completed. “Some adoptive parents are glad to agree to those conditions, and that’s fine for them. Where they have not, it is a very bad idea to adopt a presumption of enforcing such a long-term obligation on unwilling adopters,” notes Walter Olson, an adoptive parent and a senior fellow at the Cato Institute.
The legislation presents serious logistical concerns as well. What if an adoptive family wants to move across the country? Would the courts be able to prevent them? “Adoptive families are real families and deserve the full rights of other such families unless they have agreed to some other arrangement,” says Mr. Olson.
In a letter to Gov. Cuomo opposing the bill, the group New York Attorneys for Adoption and Family Formation explained that the law may also violate the due-process rights of adoptive parents. In 2000, they point out, the U.S. Supreme Court struck down a similar Washington state law.
Both houses of the New York legislature have now passed the bill, which is supported by legal services groups like the Legal Aid Society of New York City but opposed by the Adoptive and Foster Family Coalition of New York (AFFCNY), the Council of Family and Child Caring Agencies (COFCCA), “which represents nonprofit foster care agencies statewide, and the New York Public Welfare Association (NYPWA), which represents county government child welfare directors.” [Michael Fitzgerald, Chronicle of Social Change] AFFCNY has more on its opposition here, and notes: “Adoptive families would have no choice but to hire and pay for legal representation for themselves.”
- Local crackdowns on home-sharing can do a lot of harm [Christina Sandefur, Federalist Society teleforum] Sandefur on laws banning working from home [Regulation mag, Cato Daily Podcast]
- “Apparently the ad [about a 9-year-old daughter willing to do household chores for neighbors] generated multiple phone calls from paranoid neighbors thinking I was using my child as a slave,” and next thing the sheriff called [Lenore Skenazy; Woodinville, Wash.]
- Seventh Circuit rules against “disparate impact” age discrimination claims for job applicants, and a Forbes columnist writes as if it had decided to abolish disparate treatment claims for them as well [my Twitter thread on botched coverage of Kleber v. CareFusion Corp.]
- “The Law Merchant and Private Justice. A Conversation with Professor Barry Weingast” [Kleros]
- “Disabilities Rights Group Files Lawsuit Against San Diego, Scooter Companies” [Rachel Kaufman, Next City]
- Ideology vs. kid placements: “Some 440,000 kids are in foster care in the U.S.; if we shut down [theologically conservative] faith-based foster agencies, those children will have a much harder time finding homes.” [Naomi Schaefer Riley, City Journal, earlier here, here, etc.]
I’ve got a new piece at Ricochet on the problems with the Indian Child Welfare Act of 1978, which a federal judge struck down as unconstitutional in October in a ruling (Brackeen v. Zinke) likely to be appealed. Excerpt:
One effect is to give tribal governments dangerous power over persons who never willingly submitted to their authority, including persons who have never set foot in Indian country. A couple briefly connect at a bar in Boston or Brooklyn or Baltimore one night and a child is born as a result. The father may not have mentioned at the time, indeed may only imperfectly remember, that as a child he was inducted into an affiliation with some faraway tribe toward whose leadership he has long felt indifferent or estranged. But ICWA covers as an “Indian child” any biological child of a tribal member so long as that child is “eligible for membership” in a tribe.
Sorry, Dad – and sorry, total-bystander Brooklyn Mom — but under ICWA that distant tribe now has a lot of power over your future. You are not necessarily free to make an adoption plan with some trusted member of your local community. Instead, you must submit to a distant tribal authority and prepare for the child’s possible “placement … in … homes [that] reflect the unique values of Indian culture.” What about your own cultural background as a non-Native parent, along with that of your relatives who may have been helping care for the child during his first years? Your youngster may have spent his life thus far immersed in that other culture — perhaps Korean-American, or Dominican, or African-American, or Eastern European. But the law cares not. In fact, it encourages as “ICWA-compliant” placement of your child with any Indian tribe around the country, however remote from that of either biological parent’s, in preference to any non-Native placement, however well matched to the circumstances of the child’s life thus far.
The law I really despise is the ICPC, the Interstate Compact for the Protection of Children. It was originally intended to stop states from dumping foster children in other states to take advantage of their looser welfare policies.
First, it would seem to me that this should be the price paid for having loose welfare policies, but beyond that the real effect of the law is horrendous.
What the act does is make it hard to move children to caregivers out of state without that state’s permission or agreement. That agreement can take many months. A court action to return children to parents or name the state as their conservator has to be completed within a deadline, usually one year.
So, I have several cases where the parents’ families are from out of state. They have a large family network in that other state. But we can’t move the children to that family and have to put them in foster care. By the time the ICPC is completed, the foster family has a vested interest in the children and now they are fighting, and often succeed, in keeping the children away from the blood family.
I find this result to be repulsive, and that result is not at all unusual. I have a case that just ended where the mom and the dad’s family in New Hampshire are both very fine with middle class homes and lots of family support, yet because the children had been kept in foster care the courts don’t want to “disrupt” their lives again. It’s just about the most asinine government policy ever.
This gets me curious about ICPC. Other comments about its history and workings, positive or otherwise, are welcome.
I’ve posted before about our July Cato conference on adoption, pluralism, and children’s interests. Now Cato’s bimonthly Policy Report has published highlights of the panel on anti-discrimination law and religious agencies, with speakers including Stephanie Barclay of BYU, Sarah Warbelow of the Human Rights Campaign, Robin Fretwell Wilson of the University of Illinois, and me.
One of my comments about pluralism and freedom in the system: “When I began reading about adoption, I realized for about the umpteenth time how glad I was to live in America.” Not that the system isn’t full of problems: on the grueling 26-year litigation in the New York City foster care case, Wilder v. Bernstein, see this 2011 piece of mine.
Three years ago I took a critical view of the trend in many states and cities toward excluding from publicly funded adoptive placement of kids in public care relatively conservative religious agencies that decline to handle placements to families outside their belief group, to non-traditional families such as same-sex couples and single parents, or both. In recent years the ACLU and like-minded groups have stepped up the pressure with lawsuits in states like Michigan aimed at excluding these groups from access to public money unless they take all kinds of families.
Now a bill called the Child Welfare Provider Inclusion Act (H.R. 1881/S.B. 811), passed by the House of Representatives as a rider on the pending Labor/HHS appropriations bill, would prohibit states from taking adverse action against foster care and adoption agencies on the grounds that they refuse to engage in referrals, placements or other services that conflict with their religious or moral convictions. States found to have violated the rule would be subject to loss of 15 percent of their federal child welfare funding. The rule broadly prohibits “discriminating or taking an adverse action against” agencies and would give agencies broad legal remedies including attorneys’ fees.
I haven’t had a chance yet to review all the details of the bill, which in any case would need approval of the Senate and President before becoming law. The Ethics and Religious Liberty Commission of the Southern Baptist Convention (ERLC) and U.S. Conference of Catholic Bishops have papers in favor of the measure and Human Rights Campaign against.
In the mean time a well reported, balanced piece by Gillian Friedman on the controversy mentions tomorrow’s (Thursday’s) Cato conference in D.C. on adoption policy [Deseret News; more/related, Bobby Ross, Jr., Religion News Service in March] The panel on this subject leads off the conference, and includes Assistant Professor Stephanie Barclay of the J. Reuben Clarke School of Law at Brigham Young University; Sarah Warbelow, Legal Director at the Human Rights Campaign; Prof. Robin Fretwell Wilson of the University of Illinois College of Law; and me.
- State by state survey of 140 bills around the country on hot topics related to religious accommodation, including adoption, service refusals, campus speech, health care, etc. [Kelsey Dallas, Deseret News] And don’t forget to mark your calendar for two weeks from today when Cato will host our half-day conference on adoption, foster care, and pluralism with an array of fine speakers;
- What ails long-haul trucking in a time of prosperity? Federal break regulations, electronic monitoring, artificial constraints on parking among factors [Virginia Postrel, Bloomberg]
- Antitrust debates cut across political spectrum [Daniel A. Crane, Cato Regulation magazine] “Solicitor General Inveighs Against Antitrust-Law Revolution in SCOTUS ‘Apple v. Pepper’ Amicus Brief” [Corbin Barthold, WLF]
- These seem like well-planned-out laws: Google suspends running campaign ads in Washington and Maryland following states’ enactment of new disclosure laws [Michael Dresser, Baltimore Sun, Jim Brunner and Christine Clarridge, Seattle Times, Scott Shackford]
- “Missouri appeals court tosses $55 million Johnson & Johnson talc-powder verdict” [Reuters, earlier (courts reverse two other big verdicts) and generally]
- “What Secretary Carson Should Know about Affirmatively Furthering Fair Housing (AFFH)” [Vanessa Brown Calder, earlier]
“Four years after their son was first placed into foster care, a Deschutes County judge has determined that Amy Fabbrini and Eric Ziegler can parent both their boys.” The couple’s infant had been restored to them by a court ruling three weeks ago; now “4-year-old Christopher is on a track to come home as well. Both boys have spent nearly their entire lives in foster care based on the state’s concerns that Fabbrini and Ziegler were intellectually incapable of caring for their children,” though no abuse has been alleged. [Samantha Swindler, Oregonian; earlier]
- Bad Texas law requiring breweries to give away territorial rights for free violates state constitution, judge says [Eric Boehm]
- California’s identity theft statute bans so many more things than just identity theft [Eugene Volokh]
- Cato Unbound symposium on Indian Child Welfare Act/ICWA, to which I contributed, wraps up [Timothy Sandefur on sovereignty and fixes] Minnesota’s Indian foster care crisis [Brandon Stahl and MaryJo Webster, Minneapolis Star-Tribune]
- If you want to hear me translated into Arabic on bathroom and gender issues, here you go [Al-Hurra back in May]
- Asset forfeiture: “New Mexico Passed a Law Ending Civil Forfeiture. Albuquerque Ignored It, and Now It’s Getting Sued” [C.J. Ciaramella] “IRS Agrees to Withdraw Retaliatory Grand Jury Subpoena Against Connecticut Bakery” [Institute for Justice] “California Asset Forfeiture Reform Heading to Approval” [Scott Shackford]
- Evergreen: “‘I never thought leopards would eat MY face,’ sobs woman who voted for the Leopards Eating People’s Faces Party.” [Adrian Bott]
- “Kerr received a 37-page temporary restraining order last Friday which seeks to shut down her [too-popular] haunted house.” [Silver Spring, MD; ABC News]
- Blockbuster “60 Minutes” on the federal Social Security disability program, if you haven’t seen it yet [CBS; Chris Edwards, Tad DeHaven at Cato; ABA Journal on Kentucky lawyer and more]
- Chevron complaint against attorney Donziger over Ecuador shenanigans reaches trial Tuesday [Daniel Fisher] More: Michael Goldhaber, American Lawyer (“A Dickensian Cheat Sheet”);
- Ombudsman on South Dakota Indian foster care case: NPR “reporters and producers tried to push the story beyond the proof that they had. I don’t know why.” [NPR ombudsman]
- In America we use lawyers for that: “Rabbis Arrested in Plot to Kidnap, Torture Husbands to Force Divorce” [WSJ, CNN] From 1845, a British judge’s exquisitely arch observations on the then state of divorce law [Sasha Volokh]
- “Salvage company that lost $600M sunken ship case must pay $1M to Spain for ‘abusive litigation'” [ABA Journal]
- How Canada lost gun freedom [Pierre Lemieux, Liberty and Law]