Memorandum of Law – Child Welfare


PROVIDENCE, SC.                                                                                    FAMILY COURT

Respondent Mother is constitutionally entitled to a due process hearing on the court’s sua sponte emergency removal of the child from the parental home. The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty or property without due process of law.” U.S. Const. amend. XIV, § 1. Due process of law “guarantees more than fair process.” Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258 (1997). It is well established that the Fourteenth Amendment’s Due Process Clause protects parents’ “fundamental liberty interests” in the “care, custody and control of their children.” Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L. Ed. 2D 49 (2000). Moreover, the Rhode Island Supreme Court has recognized that parents have a “constitutionally protected interest in maintaining the integrity of the family unit.” In re Jonathan, 415 A.2d 1036, 1038-39 (R.I. 1980). These interests do not evaporate simply because the parents “have not been model parents or have lost temporary custody of their child to the state.” Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599 (1982); In re Kyle S., 692 A.2d 329, 334 (R.I. 1997).

A state cannot refuse to provide natural parents “adequate procedural safeguards” on the basis that the family unit has already been separated by the state. Santosky, 455 U.S. at 754. That a Family Court petition has been adjudicated with a dependency finding does not obviate the requirement that the parent be afforded due process of law when removal of the child is sought sua sponte. Removing a child from his parental home without finding that his parent is unfit is “constitutionally repugnant.” In re Nicole B., 703 A.2d 612, 615 (R.I. 1997). Thus, due process entitles parents to a hearing to determine parental fitness before a child is seized from their home. Stanley v. Illinois, 405 U.S. 645, 645, 92 S. Ct. 1208, 1209-10, 31 L. Ed. 2d 551 (1972). It demands requests of notice and a meaningful opportunity to be heard before the tribunal.

Rhode Island’s highest court has held that the trial judge in a neglect and/or dependency proceeding is “required at least to articulate (her) findings in regard to the emotional and physical welfare of the child in light of the parent’s alleged misconduct” when the court orders a child’s removal from his parent’s care. In re Jonathan, 415 A.2d at 1039. When the court transcends the bare minimal procedural requirements by expressly weighing the risk of removal versus status quo placement orders, it serves the strong public policy interest in preventing unnecessary removal and satisfies the parens patriae interest in preserving natural familial bonds and continuity of childcare. Theo Liebmann, What’s Missing from Foster Care Reform? The Need for Comprehensive, Realistic, and Compassionate Removal Standards, 28 Hamline J. Pub. L. & Pol’y 141, 160-61 (2006).

The physical removal of a child from placement with parents is a drastic State action given that it extremely interferes with a parent’s “essential” and “basic” right to raise her children.[1] Stanley, 405 U.S. at 651; In re Diana P., 656 A.2d 620, 622-23 (R.I. 1995). In addition, disturbing the familial relationship inherently inflicts trauma to the child. Marsha Garrison, Child Welfare Decisionmaking: In Search of the Least Drastic Alternative, 75 Geo. L.J. 1745, 1802 (1987). For this reason, preventing removal is favored by the legislature unless the destruction is exigent and necessary to avoid serious, “imminent danger” to the child’s health or safety. Nicholson v. Scoppetta, 3 N.Y.3d 357, 373-74, 820 N.E.2d 840, 848 (2004).

Unless the state can prove by clear and convincing evidence that the “child is actually suffering or is likely to suffer physical and/or emotional harm,” no reason exists to disturb the “basic security of a family relationship.” In re Jonathan, 415 A.2d at 1039. The state does not register any gain toward its declared goals when it separates a child from the custody of a fit parent. Stanley, 405 U.S. at 652; Santosky, 455 U.S. at 767. Its interest in finding alternate placement for the child arises only when it is clear and convincing that the natural parent cannot or will not provide the child with basic life necessities. Santosky, 455 U.S. at 767; In re Kyle S., 692 A.2d at 333.

The family court is permitted to remove a child from his parent’s custody only from a “showing that, under the conditions existing at the time of the hearing, the child is lacking proper parental control and supervision and that the welfare and best interests of the child require that custody be taken from the parent” and placed with the Department of Children Youth & Families. Engelhardt v. Bergeron, 113 R.I. 50, 58, 317 A.2d 877, 882 (1974).

However, as the court has acknowledged, removing a child from an imperfect home will not necessarily improve his welfare. Santosky, 455 U.S. at 766. In fact, the court jeopardizes the welfare of the child when it displaces a child who is “well cared for” by a fit, natural parent. Stanley, 405 U.S. at 652-53. This is strikingly true when neither the agency (designed to protect the child’s well-being) nor the court-appointed guardian (aimed to serve the child’s best interest) were seeking the child’s removal via motion or complaint. In re Nicole G., 577 A.2d 248, 250 (R.I. 1990). Sua sponte removal, in these circumstances, flouts the best interests of the child.[2] It undermines all child protective proceedings by disregarding the uniquely qualified front-line staff whom are best positioned to evaluate the child’s welfare in conjunction with the parent’s proper parental control and supervision. In this case, the DCYF caseworker’s letter to the court does not explicitly establish any nexus between the mother’s drug use and the risk of imminent harm to her child. It also bears mentioning that neither the family educational specialist nor the mental health counselor purport that mother’s medicinal use of marijuana (for chronic back pain) places the child in danger.

The court’s institutional integrity is compromised when a trial judge, acting sua sponte, orders a child’s removal from the parental home, absent a written notice of allegations (i.e. specific grounds for removal) to support alternate placement and an evidentiary hearing that would empower and properly situate the court to act as the ultimate fact-finder. Due process is merely an illusion when a drug treatment counselor’s overly-broad summary is given ultimate deference that forms the sole basis for immediate sua sponte removal, particularly when the counselor’s own account seemingly casts doubt on her professional conduct.

Date of completion: 11 August 2015

I did not receive any editing assistance on this memorandum. I have redacted identifying information to preserve confidentiality. 


[1]  The highly-intrusive nature of removal is compounded when considering its relative impact on parental rights pursuant to the Adoption and Safe Families Act that allows termination proceedings to start once a child has been “placed outside the home for 12 of the previous 15 months.”

[2] The best interests of the child include: “the right of a minor child to reasonable care and maintenance, freedom from abuse or neglect, and the right to be given an opportunity to spend the remainder of his or her childhood in a family setting in which the child may grow and thrive.” In re Robert S., 840 A.2d 1146, 1151 (R.I. 2004).

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