Taking children from parents

James E. Causey

Children’s Court Judge Marshall Murray and Milwaukee County Circuit Judge Mary Triggiano spoke to the Editorial Board on Nov. 3.

A conversation with two judges involved in child welfare cases

Nov. 13, 2010 |(11) COMMENTS

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Fatal Care: Fostering reform in child welfare

For complete archived coverage of the story of the death of 13-month-old Christopher L. Thomas Jr. and its catalyst for change in the child welfare bureau, click here.

Editor's note: Last week, the Journal Sentinel Editorial Board spoke to Presiding Children's Court Judge Marshall Murray and Milwaukee County Circuit Judge Mary Triggiano, a former presiding children's court judge, about the issues surrounding child welfare when neglect or abuse is alleged. What follows are excerpts from the discussion.

Question: Let's talk about this whole issue of parental vs. children's rights. Do you believe this tension exists and that the pendulum swings one way or the other and whether that is a good thing or not?

Murray: If there is a tension, there's a tension because, I believe, parents want to be able to parent and that most people, if not all, believe that parents should be able to parent children. The courts get involved when the parents aren't able to do it safely. That can be for a number of reasons - and poverty should not be one of them. . . . 

We know that poverty has a great effect on people's ability to care for their children. . . . But most of the time, it's because parents are having some mental health problems or drug issues, things that take them away from being a parent. . . . Poverty interferes when they can't put a roof over a child's head, when they don't have a job.

Question: But family reunification is part of the law?

Murray: It is. . . . To get a better picture, you need to realize that children who are detained, the majority of them the (Bureau of Milwaukee Child Welfare) has tried to work with, (with) a safety plan to keep the children in the home. Detaining the children is not the first option . . . So they put together a safety plan. The mother has an alcohol problem, and every weekend she goes on a binge. . . . On that weekend, she leaves and the children are at home alone; somebody calls in and reports it. . . . The social worker goes, investigates. During the week, . . . she has a drinking problem but doesn't go on a binge. . . . But every weekend, there's this issue. In working with the family, they find there are family members around. They may call the grandmother in, the aunt, the uncle and say, "Can we put together a safety plan?. . . . Can you come in and watch the children during the weekend when she's out?" . . . 

There are a lot of families with . . . family members who are alcoholics but the children are in the home. But maybe there is another family member, maybe another parent, who cares for the child while that person is unconscious because he's had too much to drink. Or he's fallen asleep. The children are never left alone; they're not unsafe.

So, the majority of cases we don't get to see in court because the bureau has intervened . . . and (tries) to come up with a safety plan, while at the same time (trying) to provide services to that family to deal with the issues that brought about the incident.

Triggiano: What we try to focus on . . . is three different things. . . . The safety of the children is always paramount; permanency and then well-being. . . . 

So, you have a case in which you need to remove a child, you have to ask a bunch of different questions. . . . And those questions actually revolve around the permanency, safety and well-being of the children. . . . 

Question: So can parents get a fair shake if the feeling is that, if we're going to err, it will be on the side of child safety? Can struggling parents ever cross that hurdle?

Murray: Yes, you can work to get your children back, but you need to engage the process early on. Because that time clock starts ticking as soon as that child comes into our court and I take custody of that child. . . . If the child remains out of the home 15 out of 22 months, the state can move toward termination of parental rights.

One of our judges has said, Judge (Christopher) Foley, . . . when that parent comes into court, this legal mumbo-jumbo we use . . . the parents don't want to hear that. What they want to hear is, what do I have to do to get my child returned home. And we as judges, as the bureau, we need to engage parents right from the beginning. Look, this is why the child was detained. This is the safety issue. These are the things you need to do, to help us figure (it) out. . . . 

And the judges are doing that now. And then there's the settlement conference where the parents come in before a court commissioner. And they have their lawyers that we've appointed if they can't afford one, . . . and they come in and they tell their lawyers that they've met and this is the way they want to go and they settle their cases.

Eight-six percent of the cases that are coming into the system right now are being resolved by the court commissioner at that settlement conference.

Triggiano: We don't see a lot of the cases that come to the attention of the Bureau of Milwaukee Child Welfare. Either the initial assessment goes out as unfounded, they do a review or there might be case where safety services is a better opportunity for this family after they analyze what's going on. . . . 

Those cases that come to us (the court), do they get a fair shake? I think the process itself on the front end ensures that they have opportunities to reunify with their children . . . .

Question: Do you think you are given enough information by the bureau to make a good decision?

Murray: Who has the best information? It's the bureau. . . . 

The D.A.'s office have their own investigators on criminal matters. They don't have investigators on child detention matters. . . . So the person who has the best information is the social worker.We think at the detention (hearing), we are getting the best information. . . . We get history . . . . We get more than the incident that may have brought this family to court.

Triggiano: I think (in) 98% of the cases, I've found that bureau's information is satisfactory to make a decision to keep those children outside the home at that particular point in time.

Murray: And the D.A.'s office is . . . also a filter. If they don't think they have enough information that they think they can prove a case, to get by a probable cause hearing, then they're not going to file it. There are cases that get referred to the district attorney that they choose not to issue.

Question: If the parents contend that this file is overstating the case and child safety is paramount, can a parent succeed in this environment?

Murray: One of the things we want to leave you with . . . the majority of the parents love their children. They want to be able to parent their children. There may be some limitations to their ability to do so, and they're willing to make changes in their behavior  . . . so that they can provide for and protect their children. Then, yeah, the children will be returned home.

I think the number is somewhere around 75% of the children are reunified . . . with their families. Now, maybe not within the year that the federal government would like us do to, but eventually 75%. . . . 

Triggiano: There is no zero-risk when a family comes in front of you. And we do need the best information possible but we have to understand how to use that information and use it very wisely.

Question: Now, let me talk the children's side here. Are parents in the system given too many chances, and do the children suffer in the interim?

Murray: We assume when we detain them that they (children) are going to be traumatically affected in a lot of ways - that anything we do after that will contribute to that trauma if we're not reunifying them. . . . Remember, every time a child is detained, you have a permanency review hearing every six months.

Question: But I am hearing a reluctance to pull the trigger on termination of parental rights, right?

Triggiano: Like I say, most of them are reunified and then there are ones that we know they're going to go to termination. No doubt. They're timely, they're all ready and raring to go because . . . there's no way mom is ever going to be able to take care of the kids. . . . But there's not as many as I think we think; they just stick out like sore thumbs.

Question: The bureau doesn't provide services. They outsource it. Do you have confidence in the quality of those services outsourced?

Murray: I do because the judicial branch, the judges have kind of oversight over the bureau. . . . If I'm not satisfied, then I should ask questions. I shouldn't make a decision without getting an answer to my question. And our judges are training locally and nationally on these issues. . . . Because the bottom line is, it's going to come back to you: Why did you make this decision?

Question: Here's an allegation we've heard. Judges, district attorneys and guardian ad litems rubber stamp the positions of caseworkers. The Children's Court judges automatically accept into evidence the "gossipy" Children in Need of Protection or Services report. The bureau never has to prove any of its allegations.

Murray: If I were to accept that statement, then I would have to accept the fact that the D.A.'s office is putting information before me that they can't prove. . . . The parents have a constitutional right to a trial by jury if they want to challenge that information, and we appoint attorneys for those parents who are not able to afford them because we think that their rights are paramount.

Question: I guess the supposition is that the CHIPS petition is based on neighbor hearsay.

Murray: A lot of those get screened out. . . .  (Detentions occur) when those allegations are affirmed by the initial social worker, who goes out and meets with the family . . . talks to whoever might have been a witness to what has been going on or what has happened. . . . 

Where there's egregious harm to the child . . . that child is going to be detained. We're not going to try to figure out a safety plan.

Question: Are parents apprised of their rights?

Murray: Parents are informed by the judge of his or her constitutional rights, the right to have a trial. . . . A lot of times they come in and say, I'm not willing to admit to everything, but I am willing to admit . . . that I am unable to care for this child right now. So, I want the court to be involved. I want the court to have jurisdiction and I want . . .  to put together a plan where I can begin to have my child returned home. So, the parents are fully informed of their rights.