Glossary, Appendix and Weblinks

2019 ABA Policy on Child and Parent Rights to Family Integrity

The American Bar Association believes that children and parents have legal rights to family integrity and family unity. This policy grew out of three recent developments in the field. First, federal litigation challenging family separation of immigrants at the U.S. border brought increased focus on applying child welfare laws in federal litigation across the country. Second, the 2018 “Family First Preservation Services Act” changed child welfare funding structures and emphasized the overall importance of children’s connections to family, including birth parents, kin, siblings, and foster families. And third, the federal government updated the Child Welfare Policy Manual of the U.S. Department of Health and Human Services to allow states to use federal funding to pay part of the cost of providing children and parents with legal counsel in child welfare and dependency cases.

• Rachel Kennedy, A Child’s Constitutional Right to Family Integrity and Counsel in Dependency Proceedings, 72 Emory L. J. 911 (2023). Available at: https://scholarlycommons.law.emory.edu/elj/vol72/iss4/3  

• Shanta Trivedi, My Family Belongs to Me: A Child’s Constitutional Right to Family Integrity,

Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 56, No. 2, Summer 2021

University of Baltimore School of Law Legal Studies Research Paper Forthcoming

ABA Model rule of Professional Conduct 2.1- Comment 2

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors, that may be relevant to the client’s situation.

ABA Policy Resolution 606 “which calls on all legal professionals to recognize how over-surveillance of and underinvestment in Black families has shaped the child welfare field for centuries.” Resolution 606 urges all legal professionals to examine that history, acknowledge our role in shaping it, and begin to untangle it by following the lead of Black children, parents, and kin who have experienced child welfare and know both the potential for harm and the importance of investing in the strength of Black families as foundational to our country.

• Abolition is a belief that calls for the end of foster care and the child welfare system as we know it, because of the view that the safety and protection of children rests with families and communities first and an understanding that the separation of children from their families is rooted in racism that can cause more trauma and harm.  Abolition requires the dismantling of racist policies and, in their place, the creation and implementation of anti-racist policies and practices that promote healing and reduce harm to families already involved with the child welfare system. 

• UPEND Abolition resources
• A Conversation with Professor Dorothy Roberts Demystifying Abolition
• Making Possible the Impossible: A Black Feminist Perspective on Child Welfare Abolition
• “Torn Apart: How the Child Welfare System Destroys Black Families – and How Abolition Can Build a Safer World” by Dorothy E. Roberts (book)

• Just Lead Washington: REJI Anti-racist & Equity Webinars
• “How To Be an Antiracist” by Ibram X. Kendi’s (Book)
• What does it mean to be an Ant-Racist?
• Several Antiracist Books Are Selling Out. Here’s What Else Black Booksellers and Publishers Say You Should Read

• Juvenile Defense Raising Race Checklist
• Family Defense in the Age of Black Lives Matter
• Derrick A. Bell Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. (1976).
• Martha Minow, Political Lawyering, An Introduction, 31 Harv.C.R.C.L.L. Rev. 287 (1996)
• Deborah N. Archer, Political Lawyering for the 21st Century, 96 Denver Law Rev., 3, 400 (2019)
• Haywood Burns, “Racism and American Law, in Law Against the People”, Robert Lefcourt ed., 1971, Cited in “W. Haywood Burns: To Be of Use”, Michael Ratner       and Eleanor Stein, Yale Law Journal, Vol 106: 753, (1996).

American Psychology Association Apology letter APA Apology to People of Color for its Role in Promoting, Perpetuating, and Failing to Challenge Racism, Racial Discrimination, and Human Hierarchy in U.S. This material can be effective in examining and cross-examining psychologist and their reports. 

American Psychiatric Association    The APA is beginning the process of making amends for both the direct and indirect acts of racism in psychiatry.   https://www.psychiatry.org/news-room/apa-apology-for-its-support-of-structural-racism

Social Work

• Social Workers   NASW apologizes for supporting policies and activities that have harmed people of color

Social Work Code of Ethics

The National Association of Social Workers Code of Ethics 

Professional ethics are at the core of social work. The profession has an obligation to articulate its basic values, ethical principles, and ethical standards. https://www.socialworkers.org/About/Ethics/Code-of-Ethics/Code-of-Ethics-English

1.05 Cultural Competence

• b) Social workers should demonstrate knowledge that guides practice with clients of various cultures and be able to demonstrate skills in the provision of culturally informed services that empower marginalized individuals and groups. Social workers must take action against oppression, racism, discrimination, and inequities, and acknowledge personal privilege.
• (c) Social workers should demonstrate awareness and cultural humility by engaging in critical self-reflection (understanding their own bias and engaging in self-correction), recognizing clients as experts of their own culture, committing to lifelong learning, and holding institutions accountable for advancing cultural humility.  https://www.socialworkers.org/About/Ethics/Code-of-Ethics/Code-of-Ethics-English/Social-Workers-Ethical-Responsibilities-to-Clients

Utilize the Appellate Process to effectuate systemic change by highlighting/ bringing significant practices and issues to the Court.  Appeals can bring about systemic changes by  addressing repeated patterns of racial disparity. Also, appellate courts are often more aware and protective of due process than state legislatures. Issue preservation at the trial level and identification of systemic issues to address on appeal are key. 

ABA Appellate Practice site  Appellate Practice (americanbar.org)

Trial Attorney Appeals Brochure

FJI Appellate Attorney Practice Guide

What to Expect In An Appeal

People can genuinely want to be fair, but their decisions, reactions, and behaviors can be determined by their unconscious processes. These cognitive functions are shaped by the racial and other stereotypes that continue to be prevalent in popular media and culture. To begin to achieve racially equitable outcomes within justice systems, lawyers and judges and other court stakeholders must understand the risks of these unconscious, stereotypical associations and related phenomena.

• Officers already get training to deal with biases they may not know they have, but there’s no evidence it actually works
• Racial Bias in American Foster Care: The National Debate
• Addressing Bias in Delinquency & Child Welfare Systems
• Race and Poverty Bias in the Child Welfare System: Strategies for Child Welfare Practitioners
• Raising Awareness of Bias and Racism: Questions for Attorneys
• Addressing Bias Among Judges
• Public Defenders’ Biases May Contribute to Wrongful Convictions
• Eliminating Bias Among Lawyers, Part 1
• Implicit Bias in the Child Welfare, Education and Mental Health Systems
• Race and Poverty Bias in the Child Welfare System: Strategies for Child Welfare Practitioners
• Addressing Bias in Delinquency and Child Welfare Systems

• With Child Welfare, Racism is Hiding in the Discretion
• The idea is that if the caseworker doesn’t know those certain factors, it decreases the chances that the decision is made based on bias, implicit or explicit, and helps ensure that the child’s safety is the main deciding factor.
• The Case for Blind Removals, with Dr. Jessica Pryce, November 30, 2021 https://parentalrightsfoundation.org/the-case-for-blind-removals-with-dr-jessica-pryce/
• TED TALK- To transform child welfare, take race out of the equation https://www.ted.com/talks/jessica_pryce_to_transform_child_welfare_take_race_out_of_the_equation?language=en
• https://www.casey.org/blind-removals-nassau/#:~:text=Overall%2C%20the%20blind%20removal%20process,ability%20to%20protect%20the%20child.
• https://www.ted.com/talks/jessica_pryce_to_transform_child_welfare_take_race_out_of_the_equation?language=en
• https://imprintnews.org/los-angeles/color-blind-ambition-removals/52958

The carceral system is a system of punishment that involves the use of prisons and other forms of confinement and surveillance.  The carceral system is not limited to physical jails or prisons, but also extends to other aspects of society that control and discipline people, especially minoritized communities.  The carceral system is based on a network of power that shapes everyone’s life.

What Is the Carceral State?

• Washington Supreme Court: ‘Meaningful Preference’ for Kin Is Required
• The Ties That Bind Us: An Empirical, Clinical, and Constitutional Argument Against Terminating Parental Rights
• Shanta Trivedi, My Family Belongs to Me: A Child’s Constitutional Right to Family Integrity, Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 56, No. 2, Summer 2021   University of Baltimore School of Law Legal Studies Research Paper Forthcoming
• Fighting for Families  Video Dorothy Roberts Made for National Council and MFP jointly organized conference Fighting for Families on Vimeo
• Teaching Justice by Keeping Families Together 
• Strengthened Bonds Symposium   Constant Climb
• The Path to Racial Equity in Child Welfare: VALUING FAMILY AND COMMUNITY

Agency is about each person’s ability to make their own decisions and live their own free lives. Related to anti-racist practices, individuals should seek to understand and respect the agency (decisions and perspectives) of their clients. 

• COVID-19 – Racial Equity and Social Justice Resources
• Trump accused of racism after clash with Asian American reporter
• Use of Foster Care Went Down During the First Pandemic Year. Did Maltreatment?

Generally, an expert witness is an individual with critical experience in a particular specialty or industry. It is common for litigation to draw upon expert evidence to assist a judge to arrive at a balanced decision. Cultural expertise (CE), provides information on socio-cultural issues such as kinship, family, marriage, customs, language, religion, witchcraft and so on. This type of evidence is primarily the result of qualitative, ethnographic research. Cultural Confidence provides litigation support such as briefs and reports explaining cultural norms and practices to attorneys, their clients, and courts.

It is common for litigation to draw upon expert evidence to assist a judge to arrive at a balanced decision. Cultural expertise (CE), provides information on socio-cultural issues such as kinship, family, marriage, customs, language, religion, witchcraft and so on. This type of evidence is primarily the result of qualitative, ethnographic research. Cultural Confidence provides litigation support such as briefs and reports explaining cultural norms and practices to attorneys, their clients, and courts.

https://thinkculturalhealth.hhs.gov/assets/pdfs/resource-library/clas-community-partnerships-crisis-response.pdf

• An Anti-Racist Review on Collecting Accurate Data on Race and Ethnicity
• A Guide to Anti-Racist Data Collection for: Case Workers and Other Frontline Staff
• Our Identities, Ourselves: A Guide to Anti-Racist Data Collection for System Leaders and Data Administrators
• Five guiding principles for integrating racial and ethnic equity in research

• Child Welfare Practice to Address Racial Disproportionality and Disparity
• A starter reading list on how child welfare policies harm Black people, families, and communities
• Fighting Institutional Racism at the Front End of Child Welfare Systems
• Disproportionality and Race Equity in Child Welfare
• Race and Class in the Child Welfare System
• Disproportionality – Child Welfare Information Gateway  
• Key Resources
• Disproportionality – Child Welfare Information Gateway  
• Measuring Disparities in Child Welfare Systems: Five Lessons
•  Racial Disproportionality and Disparities in the Child Welfare System by Alan J. Dettlaff (Book)
• Addressing Poverty as a Major Risk Factor in Child Neglect: Promising Policy and Practice  

• Raising Awareness of Bias and Racism:  Questions for Attorneys   bias-racism-atty-questions-002.pdf (familyjusticeinitiative.org)
•  Recommendations For Anti-Racist Legal Representation
• Questions to be Considered by all Parties at Every Court Hearing
• Trial Attorney Brochure
• What to Expect In An Appeal
• Appellate Attorney Practice Guide

• Practical First Steps to Address Disproportionality and Implicit Bias
• Implicit Racial Bias 101: Exploring Implicit Bias in Child Protection
• https://implicit.harvard.edu/implicit/takeatouchtestv2.html
• https://thinkculturalhealth.hhs.gov/assets/pdfs/resource-library/combating-implicit-bias-stereotypes.pdf

ICWA-  “Indian” is a political status, not a racial status.  Native sovereignty is a well-established legal principle.

• Active Efforts in ICA Cases During the Pandemic   https://familyjusticeinitiative.org/blog/active-efforts-in-icwa-cases-during-the-pandemic/
• Haaland v. Brackeen. affirmed the constitutionality of the Indian Child Welfare Act  https://narf.org/cases/brackeen-v-bernhardt/  Although the court generally upheld the authority of Congress to enact ICWA, and also held that ICWA’s definition of “Indian child” did not operate on the basis of race…
• A Place of Calm:’ Indian Child Welfare Expert Unpacks the Historic Brackeen v. Haaland Decision NANCY MARIE SPEARS  https://imprintnews.org/top-stories/a-place-of-calm-indian-child-welfare-expert-unpacks-the-historic-brackeen-v-haaland-decision/242395
• Z.J.G., 417 P3d 853 (Wash. 2020).  The court adopts a broad reading of whether there is “reason to know” a child is or may be an “Indian child” for purposes of ICWA’s application, holding that “[a] court has ‘reason to know’ a child is an Indian child when a participant in the proceeding indicates the child has tribal heritage.” 
• The Indian Child Welfare Act Handbook: A Legal Guide to the Custody and Adoption of Native American Children, Third Edition By Kelly Gaines-Stoner, Mark Tilden, and Jack Frederick Trope  https://www.americanbar.org/products/inv/book/338011063/
• ICWA Baseline Measures Report Final Draft 1.21.2020.pdf (wacita.org)
• Podcast:  The Imprint Supreme Court Stunner: The Indian Child Welfare Act Stands (imprintnews.org)
• This Land Podcast:  https://crooked.com/podcast-series/this-land/
• National Indian Child Welfare Association

An interdisciplinary approach incorporates additional professionals into the legal team, such as social workers, parent advocates, interpreters, specialized attorneys, experts, and investigators. These team members can address issues outside the courtroom to support the family unit: applying for public benefits, representing a client in criminal court, employment training, mental health counseling, and substance abuse treatment among others. The additional support these team members provide might allow children to return home sooner or avoid foster care placement altogether.

Interdisciplinary teams give clients the benefit of multiple perspectives and skill sets. Social workers can support children and parent clients by helping them access housing, mental health, and other stabilizing services, engage in services, and strategize regarding reunification or other permanency plans. 

As a fundamental principle of law, fairness, and access to justice, and to promote the integrity and accuracy of judicial proceedings, courts should develop and implement an enforceable system of language access services, so that persons needing to access the court are able to do so in a language they understand, and are able to be understood by the court.  Non-English speakers should receive the same treatment as other individuals in court proceedings, and courts must avoid any discriminatory practices based on language proficiency.  Importantly, by prioritizing language access, courts can uphold the integrity of our justice system and ensure that all individuals, regardless of their language abilities, can fully participate in legal processes

• A Resource for Understanding Behavior & Using Language in Juvenile Court
• https://thinkculturalhealth.hhs.gov/assets/pdfs/resource-library/working-effectively-with-interpreter.pdf
• You have the right to an interpreter
• Free language and interpretation help in the US
• Language Access in State Courts
• Ensuring Equal Access To Justice for Limited English Proficiency Individuals

• Trauma Caused by Separation of Children from Parents
• Beyond the Trauma Vortex into the Healing Vortex- A Guide for healing- Gina Ross (Book)
• Born for Love: Why Empathy Is Essential–and Endangered- Bruce Perry (Book)
• Building Resilience to Trauma – Elaine Karas (Book)
• Healing Trauma or Waking the Tiger- Dr. Peter Levine (Book)
• Resilient – Rick Hansen (Book)
• Representing Children in Dependency and Family Court: Beyond the Law- Rebecca Stahl (Book)
• Teens Who Hurt – Clinical Interventions to Break the Cycle of Adolescent Violence- Kenneth V. Hardy and Tracey A. Laszloffy (Book)
• Trauma and Recovery – Judith Herman M.D. (Book)
• “My Grandmother’s Hands” by Resma Menakam (book)
• “Racism+Violence: Helping Kids Handle the News”

• Responding to Microaggressions and Bias
• Microaggressions – What to Know & How to Navigate Them
• https://www.cpedv.org/sites/main/files/file-attachments/how_to_be_an_effective_ally-lessons_learned_microaggressions.pdf

Movement lawyering means taking direction from directly impacted communities and from organizers, as opposed to imposing our leadership or expertise as legal advocates. It means building the power of the people, not the power of the law. 

https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/civil-rights-reimagining-policing/movement-lawyering-in-moments-of-crisis/?q=&fq=(id%3A%5C%2Fcontent%2Faba-cms-dotorg%2Fen%2Fgroups%2Fcrsj%2F*)&wt=json&start=0

• Racial Equity Toolkit
• Racial Equity Toolkit Worksheet
• A toolkit for defenders in criminal justice system
• Anti-racism Toolkit
• Anti-racism Tools
• Race Equity Crosswalk Tool
• REJI Organizational Race Equity Toolkit
• REJI Organizational Race Equity Toolkit 2^nd Edition
• Racial Justice for Youth A toolkit for Defenders
• Parent Advocacy Toolkit for Transformation
•  Continuing Courageous Conversations Toolkit
• Human Trafficking Prevention Month Toolkit 2024

Bias & Equity Assessments

• Build the Base for Equity Advocacy
• Test Your Implicit Bias – Implicit Association Test
• Race Equity Impact Assessment
• Race Equity Crosswalk Tool

https://www.abajournal.com/magazine/article/does-artificial-intelligence-discriminate-in-child-neglect-case-assessments

https://www.aclu.org/documents/family-surveillance-algorithm

https://mcsilver.nyu.edu/predictive-risk-tools-in-child-welfare-practice/

https://www.chapinhall.org/wp-content/uploads/Making-the-Most-of-Predictive-Analytics.pdf

Pre-petition or preventive legal representation programs offer parents legal and social work advocacy to address matters including custody and divorce, orders of protection, safe and affordable housing, public benefits, guardianship, special education, and other issues that help prevent child maltreatment and extended stays in foster care. Common elements of preventive legal services programs include multidisciplinary staffing models and a range of legal expertise.

https://imprintnews.org/podcast/potential-pre-petition-counsel-jey-rajaraman

Prepetition Legal Representation (americanbar.org)

• White Privilege in Child Welfare: What Racism Looks Like
• “Me and White Supremacy” by Layla Saad (Book)
• Understanding Race and Privilege
• 2021 Equity Challenge Day 3: What Is Privilege?
• Privilege and Intersectionality

• Race Equity & Cultural Competency Curriculum for Volunteer Lawyers
• Culturally Responsive Child Welfare Practice
• Child Welfare Reading List
• NACC REDD Reading and Watchlist
• Resources for Equity, Justice, and Advocacy for Black Lives
• Racial Justice Resource Guide
• Racial Equity Learning Modules
• Fostering Equity: Creating Shared Understanding for Building Community Resilience
• Manifestation of White Supremacy in the Institution of Child Welfare
• RESOURCES FOR EDUCATORS AND FAMILIES ABOUT IMMIGRATION AND DACA
• NACC Race Equity Hub

Books

• Myth of the Model Minority:  Asian Americans Facing Racism, by Rosalind Chou.
• Waking Up White by Debby Irving
• The 1619 Project by Nikole Hannah-Jones
• The Autobiography of Malcolm X by Malcolm X
• The Fire Next Time in Collected Essays by James Baldwin.
• Between the World and Me by Ta-Nehisi Coates
• They Called Us Enemy by George Takei
• I Know Why the Caged Bird Sing by Maya Angelou
•  Monty’s Day in Court: What To Expect When You Have To Testify In Court

El Día de Monty en la Corte: Qué esperar al testificar en la corte (Spanish Edition)

• White Fragility, by Robin J. DiAngelo
• Their Eyes Were Watching God by Zora Neale Hurston
• The Bluest Eye by Toni Morrison
• There There by Tommy Orange
• Shattered Bonds:  The color of child welfare” by Dorothy Roberts
• The Spirit Catches You and You Fall Down: A Hmong Child, Her American Doctors, and the Collision of Two Cultures (FSG Classics) by Anne Fadiman
• Invisible Child: Poverty, Survival & Hope in an American City” by Andrea Elliott
• Uncomfortable Conversations with a Black Man by Emmanuel Acho
• A Taste of Power A Black Woman’s Story by Elaine Brown
• The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander
• This Bridge Called My Back: Writings by Radical Women of Color edited by Cherríe Moraga and Gloria E. Anzaldúa.

Videos

• What Dark-Skinned People Will Never Tell You

• Dawnland
• Constance Wu on Why Representation Matters

• Hannah Gadsby’s Nanette on Netflix
• One Child Nation documentary   
• The Fierce Urgency of Now: Disrupting Racism in Child Welfare

• Adoptees Speak

• Dorothy Roberts- Fighting for Families

• Teaching Justice by Keeping Families Together

• Strengthened Bonds Symposium

• White Rage, the Unspoken Truth of Our Nation’s Divide

• Roger Goodell APOLOGIZES for NFL Not Listening About Racism”

• Boys, Growing Up Black

Native America Focus

• Dawnland & Blood Memory (also in video section)
• The Nation’s First Family Separation Policy- Forty years ago, three in 10 Indian children were taken from their families.
• Turtle Talk- Brackeen v. Haaland
• Blood Memories
• Child Welfare Systems Change: NCWWI Advisory Board Recommendations
• Issue Fifteen | A Native Story

Articles & Publications

• NAACP Criminal Justice Fact Sheet
• Entangled Roots: The Role of Race in Policies that Separate Families
• Six Charts That Dismantle The Trope Of Asian Americans As A Model Minority
• Facing Race in Child Welfare
• What Parents Say About Advancing Equity and Support for Underserved Communities
• Framing Racial Equity in Adolescence: Messaging Strategies for Social Change
• How Racism Can Affect Child Development   
• A Child Bumps Her Head. What Happens Next Depends on Race.
• Targeted by Two Systems
• NAACP Criminal Justice Fact Sheet
• Entangled Roots: The Role of Race in Policies that Separate Families
• The Path to Racial Equity in Child Welfare: Valuing Family and Community
• Levels of Racism: A Theoretic Framework and a Gardener’s Tale

Organizational Development

• New Resources Help Organizations Advance Race Equity at Every Step
• Race Equity & Inclusion Guide 
• Washington Race Equity & Justice Initiative REJI Racial Equity Impact Assessment
• National Child Welfare Workforce Institute Race Equity Resource List
• New Resources Help Organizations Advance Race Equity at Every Step
• Promoting Racial Equity Through Workforce & Organizational Action

• This Land
• The Children’s Law Podcast: Your Role in Promoting Race Equity
• 9 Podcasts That Don’t Whitewash Race – YES! Magazine (yesmagazine.org)
• My Favorite Native American Podcasts
•  Racial disproportionality and disparities in the child welfare system​
• 1619, A podcast from the New York Times
• Code Switch
• Revisionist History
• The Consequences of Racism
• The Stoop: The Birth of Solomon
• Diaries of a Black Girl in Foster Care
• 12 Podcasts About Race and Racism to Listen to Right Now
• Race and Equity In Child and Family Serving Systems
• Torn- a podcast about Racial Disparities in the Child Welfare System 
• The Imprint Weekly Podcast
• The Upend Podcast
• Nine Podcasts That Don’t Whitewash Race
• Twelve Podcasts About Race & Racism
• National Institute For Trial Advocacy
•  LIBERATED VOICES – MINING FOR GOLD (miningforgoldcommunity.com)
•  InnerViews: A Podcast from Youth Voices Rising – SafeCamp Audio
• Community In-Site – SafeCamp Audio 

In jurisprudence, selective prosecution is a procedural defense in which defendants argue that they should not be held criminally liable for breaking the law, as the criminal justice system discriminated against them by choosing to prosecute.  Selective prosecution is a violation of the constitutional guarantee of equal protection for all persons under the law. On the federal level, the requirement of equal protection is contained in the DUE PROCESS CLAUSE of the FIFTH AMENDMENT to the U.S. Constitution. 

What must a defendant show in order to win a claim of selective prosecution?   Oyler v. Boles, 368 U. S. 448, 456. In order to prove a selective-prosecution claim, the claimant must demonstrate that the prosecutorial policy had a discriminatory effect and was motivated by a discriminatory purpose.  United States v. Armstrong :: 517 US 456 (1996) – Justia …

See also  https://law.jrank.org/pages/10122/Selective-Prosecution.html#ixzz796ogR6xR