1) Approve her home for her grandson, even though it was a studio apartment 2) Recognize that receiving government benefits was not evidence of her inability to care for her grandson 3) Acknowledge that stranger foster care licensure requirements do not apply to kin. Would the courts find that she was unable to parent because of how her life situation had worsened during COVID-19? Would she be blamed for her food insecurity even though it was caused by a failure of government and community resources? 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. 3 Federal and state law requires courts to assess whether an 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. For example, housing instability does not render a parent incapable of parenting his or her children. 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. When a court grants a removal application based on a lack of housing, or other manifestations of poverty, such as food insecurity, the holding essentially equates a parent's state of poverty with neglect. This both misapplies legal requirements and causes unjustified and tragic trauma. Yet, in practice, child welfare agencies struggle to distinguish between how the circumstances of poverty impact a family and the legal requirement that these conditions in and of themselves cannot form the basis for a finding of abuse or neglect. In most circumstances, conditions that lead to a family being in poverty are beyond the family's control and often stem from multi-generational poverty and racism. 4
Nationwide, agency-involved interventions and removals arise from poverty-related issues. The most common being the inability to access and maintain stable housing. Children are routinely removed from their families solely for a parent or caretaker’s inability to pay rent. Greater support from child welfare agencies for struggling families could significantly decrease the number of family separations. Courts must ensure child welfare agencies comply with federal and state reasonable efforts requirements. For example, in New Jersey, the child welfare agency 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." 5 The supports and interventions a child welfare agency employs can bring a family to a level of sustained stability that strengthens the family unit, meets reasonable efforts requirements, and leads to a reduction in removals. During our time together, I asked P.B. if she was afraid of COVID-19. She said, “No, I am a Black woman in America, and COVID means nothing.” She continued to say, “I am preparing for everyone who is supposed to help me to let me down again, like the welfare and housing departments.” She went on to say that COVID-19 would cause the Division of Child Protection and Permanency (DCPP) to stop tracking her. In the ensuing weeks, her unsupervised visitation weekly with her grandchild completely stopped due to a lack ______________ 3 In Doe v. G.D 146 N.J. Super. 419 (App. Div. 1976).; the appellate division held that the existence of substandard, dirty and inadequate sleeping conditions may be unfortunate incidents of property, but they do not establish neglect or abuse. The Appellate Court noted, if we were to accept such an interpretation and approach, it would result in the mass transfer of children from underprivileged and improvised homes to more luxurious and upper-class accommodations. This clearly was not the design of the statute nor the intent of the Legislature. 4 Roberts, Dorothy, Shattered Bonds: The Color of Child Welfare , Civitas Books, 2009. See also Roberts. Dorothy, “Prison, Foster Care, and the Systemic Punishment of Black Mothers” 59 UCLA L. Rev. 1474(2011-2012). 5 N.J.S.A. 30:4C-11 states that while making reasonable efforts to preserve and reunify the child's family, the Division may make concurrent reasonable efforts to place a child for adoption, with a legal guardian, or in an alternative permanent placement.
FIJ Quarterly | Summer 2022 | 119
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