Motions & Briefs
The arguments contained within these sample motions and briefs can also be utilized during oral argument. Additionally, this section includes persuasive supportive material that can be used, when applicable, to further bolster advocacy. Lastly, a hypothetical case is included demonstrating the application of the sample motions and briefs.
Three Categories of Motions and Briefs:
1. Objecting to and Opposing Removal, Immediate Harm, Findings of Abuse and Neglect
2. Out of Home Placements-Post-removal
- Requests for Return and Immediate Reunification
- Advocating for Placements with Kin
- Placing Siblings Together and, If Not, Frequent Visits
- Advocating for Meaningful Services
- Insisting on Ample and Adequate Parenting Time
- Opposing the Petition of Termination for Rights
- Enforcing ICWA and Issues Facing Indigenous Children and Families
3. Instances of Individual Explicit and Implicit Bias
4. Supportive Material to add to Motions and Briefs
5. Application- Case Hypothetical
I. Objecting to and Opposing Removal, Immediate Harm, Findings of Abuse and Neglect
I.A: Objecting to and Opposing Removal
1. Brief Challenging Finding of Neglect against BIPOC Parents based on Use of Marijuana In the Matter of Luciano P., Natalie S., Ava P., and Justina S., Children under eighteen years of age alleged to be neglected by Louis P
This brief discusses how many people who are accused of neglect as a result of their marijuana use are low-income people of color. The brief analyzes the disparity in treatment between white parents and parents of color, both in the application and enforcement of child welfare and criminal laws regarding the use of marijuana. The brief provides authority and argument in support of the position that the regular use of marijuana that occurs outside the presence of the children, does not result in intoxication or substantial impairment of judgment, and does not result in harm or imminent risk of harm to children, does not constitute neglect.
2. Amicus Brief Arguing Against Expanding Child Abuse Finding to Include Pregnancy or Pregnancy Outcomes In the Interest of L.J.B., 10 MAP 2018 (Sup. Ct. PA 2018).
This amicus brief presents argument, authority, and research challenging laws and legal authority expanding the definition of child abuse to include pregnancy or pregnancy outcomes. The brief outlines the negative consequences of such an expansion of the law, including deterring women and families from seeking healthcare during pregnancies, and economic consequences to families who are burdened with child abuse findings.
Update: In the Interest of L.J.B., 10 MAP 2018 (Sup. Ct. PA 2018). Reversed; based upon the relevant statutory language, a mother cannot be found to be a perpetrator of child abuse against her newly born child, based solely upon drug use while pregnant.
3. Appellate Brief Opposing Compulsory Drug Screens in Child Abuse or Neglect Investigations (40 pgs) In the Interest of D.R., 232 A.3d 547 (Sup. Ct. PA 2020).
This brief argues that the agency’s authority to investigate suspected cases of child abuse does not include the authority to obtain involuntary urine samples from parents. The brief cites research, authority and argument demonstrating how widespread agency discretion in seeking drug testing orders in child abuse cases increases the potential for disparate impacts on poorer people and people of color.
Update: In the Interest of D.R.,232 A.3d 547 (Sup. Ct. PA 2020). Superior Court judgment affirmed; authority of agency to investigate suspected child abuse does not include authority to obtain involuntary urine sample from parent.
https://casetext.com/case/in-re-interest-of-dr-18
4. Amicus Brief Supporting Application of 4th Amendment Protections to Search of Parents’ Home In the Interest of Y. W.-B., 265 A.3d 602 (Sup. Ct. PA 2021).
This amicus brief challenges the agency’s authority to search a parent’s private home when the initial allegations of child neglect occurred in a public place and were not related to any condition within the family home. The brief also sets forth authority demonstrating how Black families, families of color, and families in poverty are disproportionately represented at every stage of child welfare interventions, and as a result, experience disparate outcomes. The brief argues that, under federal and state 4th amendment protections, the parent has a right to privacy in her home affairs, and these Constitutional protections are critical safeguards to ensure families are not unnecessarily subjected to trauma or unreasonable investigations.
Update: In re Interest of Y. W.-B., 265 A.3d 602 (Sup. Ct. PA 2021). Reversed; as a matter of first impression, issue of probable cause to believe that child was a victim of neglect was governed by principles of federal and state constitutional limitations against unreasonable search and seizure.
5. Memorandum of Points and Authorities on Harm of Removal and Separation of Children From Families
This memorandum excerpts points and authorities detailing the various harms caused by the separation of children from their families. The harm includes psychological harms and mental health disorders, including but not limited to post-traumatic stress disorder, anxiety, and depression. The harm also includes evidence of damage to children’s brain development and impacts on children’s IQ. The memorandum provides argument and evidence demonstrating that parent-child separation causes attachment issues, behavior issues, and lifelong setbacks in learning and health.
6. Amicus brief arguing for placement of black child with relatives. In Re Dependency of K.W.
This brief asks does the courts’ use of the best interest of the child inquiry usurp the constitutional and statutory preference for keeping a black child with their family, after the child is ordered by the court to be removed from his parent’s home? It also questioned if the a lower court’s decision constitutes probable error and substantially alters the status quo under (WA) RAP 2.3(b)(2) and 13.5(b)(2) because it affirms the operation of anti-Black racial bias in the agencies decision-making.
Key arguments include:
A) Black and Native American Families Have Been and Continue to Be Disparately Impacted by Forced Family Separation
B) Empirical Literature Demonstrates that Family Separation Is Detrimental to the Child.
C) The Statutory Preference for Family Placement Is Consistent with a Child’s Constitutional Right to Live with Their Own Family and Is Less Susceptible to Operation of Implicit Bias than the “Best Interests” Standard. There is some really good language in this brief regarding racial disproportionality, behaviors by the agency which suggest inferences of racial bias, and the lack of evidence of harm to the child when he was in the care of his family.
7. Amicus Brief IN RE N.R., a Minor v. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND HUMAN SERVICES
Challenging whether the state must use a definition of “substance abuse” based on medical expertise, and whether substance abuse by a parent of a child under the age of 6 should presumptively be considered neglect.
ACLU, National Center for Youth Law, and Children’s Rights filed a family policing case pending in the California Supreme Court. The case involves the state removing a one-year-old child from his father based on the father’s weekend use of cocaine during a time when the child was not with him. The legal issues deal with whether the state must use a definition of “substance abuse” based on medical expertise, and whether substance abuse by a parent of a child under the age of 6 should presumptively be considered neglect.
Update: In re N.R., 539 P.3d 417 (2023). The California Supreme Court held that a finding of “substance abuse” is not prima facie evidence of a parent’s inability to provide regular care resulting in a substantial risk of physical harm to a child of tender years.
https://www.courts.ca.gov/opinions/documents/S274943.PDF
8. Decision: The One Parent Doctrine Dept. of Human Servs. v. Laird (In re Sanders) Supreme Court of Michigan November 7, 2013, Argued; June 2, 2014.
At issue in this case was the constitutionality of Michigan’s one-parent doctrine. The one-parent doctrine permits a court to interfere with a parent’s right to direct the care, custody, and control of the children solely because the other parent is unfit, without any determination that he or she is also unfit. In other words, the one parent doctrine essentially imposes joint and several liability on both parents, potentially divesting either of custody, on the basis of the unfitness of one. The Court affirmed. Held: it is not unconstitutional under the Due Process Clause of the Fourteenth Amendment when a child whose other parent has already been adjudicated unfit requires a hearing on the other parent’s fitness before the state can interfere with his or her parental rights. 495 Mich. 394, *462; 852 N.W.2d 524, **560; 2014 Mich. LEXIS 1027, ***105
I.B: Enforcing the Reasonable Efforts Requirement
Brief of Arguments and Authorities in Support of Release of Child, Challenging Reasonable Efforts, and Arguing Caseworker Implicit Bias
https://familyjusticeinitiative.org/wp-content/uploads/sites/48/2023/12/3-MOTION-SEEKING-RELEASE.pdf
This brief presents arguments and authority challenging the agency’s initial removal of a Fijian child from her mother, following a domestic dispute between the child and the child’s adult brother. The brief makes the case for release of the child to the child’s mother, arguing that the social worker’s implicit bias regarding the family’s race resulted in the agency failing to make reasonable efforts to prevent or eliminate the need for removal. The brief provides examples of the specific ways the social worker’s implicit bias created barriers to safely maintaining the child in the parent’s home and protecting the child’s well-being.
BRIEF: Reasonable efforts and a sibling’s right to intervene in the termination of a younger sibling. Whether, in this action to terminate a mother’s rights to two daughters, the superior court erroneously denied a motion to intervene brought by the mother’s son, where the termination petition had been dismissed as to him, but he asserted that he had a stake in the termination proceedings because his familial relationship with his sisters would be jeopardized by the termination of his mother’s parental rights as to them. In re the Dependency of M.L.W. & I.A.W.
Journal articles and Reference material related to Objecting to and Opposing Removal & Reasonable Efforts
- Black families are overrepresented in reports of suspected maltreatment.
K.S. Krase, 7 JOURNAL OF PUBLIC CHILD WELFARE 351–369 (2013) - Black children and parents experience child protective services (CPS) investigations at higher rates. More than half (53%) of all Black children in America will experience a child welfare investigation by age 18.
Hyunil Kim et al., 107 AM. J. PUB. HEALTH 274, 274-280 (2017) - Black children are at greater risk than white children of being separated from their families
following investigation, even when alleged maltreatment is the same.
Youngmin Yi et al., 110 AMERICAN JOURNAL OF PUBLIC HEALTH 704–709 (2020) - For general proposition that Black families are overrepresented in every step of the child welfare investigation.
Dettlaff, A. J., & Boyd, R. (2020). Racial Disproportionality and Disparities in the Child Welfare System: Why Do They Exist, and What Can Be Done to Address Them? The ANNALS of the American Academy of Political and Social Science, 692(1), 253–274. - Medical professionals are more than twice as likely to evaluate and report children of color presenting with accidental or indeterminate fractures for suspected abuse. This racial disproportionality remained significant even after controlling for socioeconomic status.
● Wendy Lane et al., Racial Differences in the Evaluation of Pediatric Fractures for Physical Abuse, 288(13) J. OF AM. MED. 1603 (2002)
Child protective reports involving Black children and children of color are more likely to proceed to an investigation than reports involving white children.
● John D. Fluke et al., Disproportionate Representation of Race and Ethnicity in Child Maltreatment: Investigation and Victimization, 25(5) CHILD. AND YOUTH SERV. REV. 359 (2003) - Reports of maltreatment involving Black children are more likely to be “substantiated” at the conclusion of an investigation than those involving white children.
● Kathryn Maguire-Jack et al., Child Protective Services Decision-Making: The Role of Children’s Race and County Factors, 90(1) AM. J. OF ORTHOPSYCHIATRY 48, 56 (2019)
● Sheila Ards et al., Racial Disproportionality in Reported and Substantiated Child Abuse and Neglect: An Examination of Systemic Bias, 25(5/6) CHILD. AND YOUTH SERV. REV. 375 (2003) - Theresa Knott & Kirsten Donovan, Disproportionate Representation of African American Children in Foster Care: Secondary Analysis of the National Child Abuse and Neglect Data System 2005, 32 CHILD. AND YOUTH SERV. REV.679 (2010) (finding that after controlling for child, caregiver, household and abuse characteristics, Black children had 44% higher odds of foster care placement when compared with white children).
- Jey Rajaraman, Reasonable Efforts in Child Welfare Cases: New Jersey Supreme Court Gives Guidance, ABA (Sept. 01, 2011) https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/child_law_practice/vol30/september_2011/ (discussing practice points for representing parents in cases where reasonable efforts are at issue)
II. Out of Home Placements-Post-removal
II.A: Request for Return and Immediate Reunification
In this motion, counsel for the mother argues that the client comes from a community which has experienced racial harm caused by the child welfare system. Motions uses qualitative research to support their arguments. Client did not seek medical care for a burn and counsel argues that poor parents of color, have negative associations with child protectives services and fears of the punitive repercussions—including swift separation.
II.B: Advocating for Placement with Kin
- Brief in Support of Child’s Request for Relative Placement In the Matter of Dependency of K.W., 504 P.3d 207 (Wash. Sup. Ct. 2022).
This brief argues for placement of a Black child with his suitable, willing, Black family member, as opposed to placement in licensed foster care. The pleading sets forth the legal requirements for relative preference over placement in foster care. The brief draws out the history of the racist policies that led to the overrepresentation of children in the foster care system, and argues that the reasons provided by the Department for rejecting Black relatives as suitable placement options (including prior unfounded CPS history, prior contact with law enforcement, and prior criminal history) demonstrate the Department’s anti-Black bias.
Update: In the Matter of Dependency of K.W., 504 P.3d 207 (Wash. Sup. Ct. 2022). Reversed; the trial court abused its discretion in denying the request of the child, K.W., to be returned to the care of his willing and suitable relatives.
https://www.biahelp.com/in-re-dependency-of-k-w/
2. This brief highlight that (a) reasonable efforts were not implemented; and (b) the importance of kinship care, and how a willing relative came forth but did not receive help from the agency. When a child is removed from his or her home, relatives can be the most fundamental resource available to meet the child’s needs. It can also help the child maintain a sense of identity, continuity, and belonging to his family, while he is separated from his parents. https://familyjusticeinitiative.org/wp-content/uploads/sites/48/2023/12/Sample-brief_JR-New-Jersey-1.pdf
3. T.M. v. DeWine,
Amicus Brief by Children’s Defense Fund: https://www.childrensrights.org/wp-content/uploads/1970/01/CDF-amicus-12.16.21.pdf
(Federal history on placing children with kin and the Harm to Bipoc children when this does not occur)
(collecting data, studies, and statutory analyses about importance of kinship care in BIPOC communities)
Amicus Brief by Ohio Grandparent Kinship Coalition: https://www.childrensrights.org/wp-content/uploads/1970/01/Ohio-Kinship-Coalition-amicus-12.16.21.pdf
(Foster Care Maintenance Payments are essential for kinship caretakers and without Foster Care Maintenance Payments, undue harms befall Ohio’s children and their approved kinship caregivers)
Journal articles and Reference material related to Advocating for Placement with Kin
- The Kinship Diversion Debate: Policy and Practice Implications for Children, Families and Child Welfare Agencies, Annie E. Casey Foundation (2013), https://assets.aecf.org/m/resourcedoc/KinshipDiversionDebate.pdf (compiling benefits of kinship diversion)
- Marcía Hopkins, Family Preservation Matters, Juvenile Law Center (Sept. 24, 2020), https://jlc.org/news/family-preservation-matters-why-kinship-care-black-families-native-american-families-and-other (discussing why kinship care is critical to preserving familiar and culture bonds for BIPOC families)
II.C: Placing Siblings Together and, if not, Need For Frequent Contact
National Center for Youth Law Amicus Brief in J.P. v. Alameda County, https://jlc.org/sites/default/files/attachments/2020-03/2019.1.23%20Amicus%20Brief.pdf (discussing legislative, statutory, and legal history surrounding the right to sibling association)
Journal articles and Reference Material Related To Keeping Siblings Together
Font, S. A., & Kim, H. W. (2022). Sibling Separation and Placement Instability for Children in Foster Care. Child Maltreatment, 27(4), 583–595. https://doi.org/10.1177/10775595211012482
II.D: Advocating for Meaningful Services
1. (unpublished) In the Matter of Dependency of J.L. Q-R., 193 Wash.App. 1047, 2016 WL 2593878 (Unpublished. Div. 3, 2016).
In the case, a Salvadorian monolingual Spanish speaking mother was referred to both a white monolingual English speaking male psychologist and counselor. A trial court later terminated the mothers rights. The court of appeals reversed the termination, finding that the State failed to provide appropriate services. The case noted that American Psychological Association promotes the need for interventions in a client’s native tongue and that therapy touches on a client’s background, culture and religion and a Spanish-speaking therapist with an understanding of Central American culture was better suited to address the mother’s needs. This is a link to the case
https://www.courts.wa.gov/opinions/pdf/332764.unp.pdf.
2. Sample Brief- Motion for Court to Authorize Hormone Therapy and Gender Affirming Care
Counsel for minor sets forth arguments to secure gender affirming care for the client. Arguments include the juvenile court’s is authority to make any and all “reasonable orders for the care, supervision, custody, conduct, maintenance, and support” of a child declared a dependent of the court, even over the parents’ objection so long as the parents due process rights are met.
Material also recites how many national and international medical associations support gender-affirming care for youth when applicable and references studies by The Trevor Project that found that access to gender affirming healthcare is “significantly related to lower rates of depression and suicidality among transgender and nonbinary youth.” Since LGBTQ+ youth are four times more likely to attempt suicide, gender affirming care can be lifesaving.
Journal articles and reference material related to advocating for meaningful services
- Haksoon Ahn et al., Family team decision meeting and child welfare service disparities: The influence of race and poverty, Children and Youth Services Review, Volume 143, 2022, https://www.sciencedirect.com/science/article/abs/pii/S0190740922003413.
- Once in CPS custody, Black children have longer placements in foster care, receive fewer services, and are less likely to reunify with families. Children’s Bureau Bulletin, Child Welfare Practice to Address Racial Disproportionality and Disparity (April 2021), https://www.childwelfare.gov/pubpdfs/racial_disproportionality.pdf
II.E: Insisting on Ample and Adequate Parenting Time
Parent’s Motion and Declaration to Reinstate Visits for Father
This motion argues for reinstatement of visits for a father whose visits were suspended based on law enforcement recommendation. It cites to research showing the overrepresentation of Black children in child abuse and neglect referrals and substantiation, as well as research showing race was an explanatory factor in caseworker assessment of risk. The motion argues the Department has made no showing that supervised visits would be harmful to the child, and that suspension of visits negatively impacted the child’s development of her Black identity, particularly while she was placed with a white relative.
II.F: Opposing the Petition of Termination of Parental Rights
Appellate Brief Opposing Termination of Parental Rights for Race-Based Reasons In the Matter of Tai-Gi K. Q.-N.-B., 179 A.D.3d 1056 (Slip. Op., NY, 2020).
This appellate brief challenges the termination of a parent’s rights based on a parent’s alleged failure to take the child into her full-time custody, even though the parent had completed her service plan, had full-time housing, previously had unsupervised visitation with the child, and had made culturally-appropriate child care plan with child’s foster parent. The brief provides argument and authority about the African American community’s long history of women caring for each others’ children through cooperative networks, and how such networks help families survive with limited resources.
Update: In the Matter of Tai-Gi K. Q.-N.-B., 179 A.D.3d 1056 (Slip. Op., NY, 2020). Reversed; the agency failed to establish that the mother failed to maintain contact with, or plan for, the future of her child, or that it made diligent efforts to encourage and strengthen the parental relationship.
https://law.justia.com/cases/new-york/appellate-division-second-department/2020/2019-01966.html
Journal articles and reference material related to Opposing the Termination of Parental Rights
- The Ties that Bind Us: An empirical, clinical, and constitutional argument against terminating parental rights. Sankaran, V. S., & Church, C. E. (2023). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4397994 This Article explores the unnecessary termination of a child’s relationship with their parent from an empirical, clinical, and constitutional lens.
- Christopher Wildeman et al., The Cumulative Prevalence of Termination of Parental Rights for U.S. Children, 2000–2016 – Christopher Wildeman, Frank R. Edwards, Sara Wakefield, 2020 (sagepub.com) Black children are 2.4 times more likely than white children in foster care to experience parental loss through a court-ordered termination of parental rights. TPR has become so common in the US that this NIH study projected roughly 1 of every 100 children living in America will experience a court ordered TPR. The rate is about 2 of every 100 Black children in America.
II.G: Enforcing ICWA and Issues Facing Indigenous Children and Families
1. Amicus Brief of Indian Child Welfare Act Expert Parties Regarding Historical Trauma to Native American Families and on the Importance of Active Efforts Matter of Dependency of G.J.A., 489 P.3d 631 (Wash. Sup. Ct. 2021).
This amicus brief details the history of the Indian Child Welfare Act (ICWA), including the reasons for the law’s enactment and the protections ICWA provides to Native children in order to preserve Native families, communities, and identities. The brief provides argument and authority defining active efforts, including how those efforts differ from the reasonable efforts otherwise required to reunify the family in a child welfare case. The brief details how, in cases involving Indian families, parent-child separation at the hands of the State is uniquely difficult, given that government-sponsored family removal has been a historical trauma routinely experienced by Native families. Because Native families often struggle to trust the Department as a result of that trauma, active efforts must account for, and be responsive to, this history in order to set a family up for success.
Update:
Matter of Dependency of G.J.A., 489 P.3d 631 (Wash. Sup. Ct. 2021). Reversed; the Department failed to provide active efforts to prevent breakup of Indian family, as required by ICWA and State ICWA, and the “futility doctrine” established by caselaw does not apply in cases governed by ICWA or State ICWA.
Cultural dissimilarity factors between biological and foster families along ethnic, country of birth, and spoken language types are associated with higher levels of child depressive symptoms, feelings of loneliness and social dissatisfaction, and conduct problems in the foster home shortly after children are placed in non-kinship foster homes.
2. Briefing and United States Supreme Court Decision in Haaland v. Brackeen
Casey Family Programs filed an amicus brief with the U.S. Supreme Court in support of ICWA. It is Casey’s belief that ” ICWA has helped establish the values and practices that have become central to effective child welfare practice. Children are best served by preserving and strengthening their family and community relationships to the fullest degree that safety allows.” Turtle Talk includes descriptions of and links to all the amicus briefs arguing in favor of ICWA in the case.
https://turtletalk.blog/2022/08/21/amicus-briefs-in-haaland-v-brackeen/
Update: In a 7-2 decision authored by Justice Barrett, the United States Supreme Court affirmed the constitutionality of the Indian Child Welfare Act in Haaland v. Brackeen, 143 S.Ct. 1609 (2023) https://www.supremecourt.gov/opinions/22pdf/21-376_7l48.pdf. Additionally, a concurring opinion authored by Justice Gorsuch details the history that led to the passage of ICWA including the federal government’s attempts to destroy tribal identity, force assimilation through boarding schools and promote adoption of Native American children by non-Native families.
Journal articles and Reference material related to Enforcing ICWA and Issues Facing Indigenous Children and Families
1. Anderson M, Linares LO. The Role of Cultural Dissimilarity Factors on Child Adjustment Following Foster Placement. Child Youth Serv Rev. 2012 Apr;34(4):597-601. doi: 10.1016/j.childyouth.2011.11.016. PMID: 26166923; PMCID: PMC4498390.
Indigenous child removal from tribal communities has demonstrated the emotional, psychological, and spiritual issues faced by indigenous children whose ties with their tribal communities and families has been severed and revealed that indigenous children suffer lifetime psychological and emotional trauma as a direct result of their loss of cultural experiences and transmission of a cultural identity.
2. Carol Locust, Split Feathers: Adult American Indians Who Were Placed in Non-Indian Families as Children, 44 Ontario Ass’n Child Aid Soc’y J. 11 (2000)
Indigenous youth that participated in traditional and spiritual activities and identified with their indigenous culture had increased well-being and resilience.
3. Teresa LaFromboise et al., Family, Community, and School Influences on Resilience among American Indian Adolescents in the Upper Midwest, 34(2) Journal of Community Psychology 193 (2006) (available at https://bit.ly/3mMmjrp).
III-Instances of Explicit and Implicit Bias
III.A: Caseworker Bias
Memorandum of Arguments and Authorities in Support of Release of Child, Challenging Reasonable Efforts, and Arguing Caseworker Implicit Bias
https://familyjusticeinitiative.org/wp-content/uploads/sites/48/2023/12/3-MOTION-SEEKING-RELEASE.pdf
This memorandum presents arguments and authority challenging the agency’s initial removal of a Fijian child from her mother, following a domestic dispute between the child and the child’s adult brother. The brief makes the case for release of the child to the child’s mother, arguing that the social worker’s implicit bias regarding the family’s race resulted in the agency failing to make reasonable efforts to prevent or eliminate the need for removal. The brief provides examples of the specific ways the social worker’s implicit bias created barriers to safely maintaining the child in the parent’s home and protecting the child’s well-being.
III.B: Judicial Bias
Decision: In the Matter of Dependency of Q.S., 515 P.3d 978 (Div. 3, 2022). Finding of Dependency Reversed; Trial Court Failed to Confront Racial Bias in Child Dependency System.
On August 18, 2022, a motion to publish Q.S. was granted. On June 7, 2022, the appeals court reversed an order of dependency entered against a father as to his two sons. The father, who is black, had grown up in the foster care system, and had suffered significant abuse, including sexual abuse, while in the Department’s care. At trial, the Department’s position was that the father was aggressive, erratic, and uncooperative with the Department. However, the father testified that his resistance to the Department resulted from his experience as a black man interacting with a system of authority, as well as from his own experience being raised in the care of the Department. The father also presented expert witness testimony from a representative of the NAACP, who testified that implicit bias had played a role in the Department’s request to remove the children from the father’s care. The trial court largely disregarded the testimony of the expert witness, found that the father “perseverates on racial injustice and is preoccupied with the racial makeup of those around him,” and granted the Department’s petition.
On appeal, the Court of Appeals reversed the trial court. The Court of Appeals held that the State’s concerns regarding the father’s anger catered to the stereotypical perception of a loud, black man. The Court of Appeals cited to the 2020 Washington Supreme Court open letter to the state judiciary and legal community, and appended the letter to the opinion. The Court of Appeals detailed the overrepresentation of Black children in foster care, the worse outcomes for Black children in the dependency system, and the responsibility of every member of the legal community to “work together to eradicate racism.” The Court of Appeals held that the trial court erred when it “never confronted the possible racial bias in the child dependency system. Instead, the superior court asked the NAACP representative if she was explicitly biased when she observed racism against African Americans in the system.”
https://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=380271MAJ
III.C: Discrimination Against Intersectional Identities
Appellate Brief Opposing Finding of Neglect Based on Religion
In the Matter of Anthony A.R., 188 A.D.3d 697 (2020 N.Y. Slip Op. 06270).
In this appellate brief, the mother argues that the trial court erred in making a finding of neglect based upon behaviors that were associated with the mother’s religious expression, including speaking in tongues and referring to religious figures, as well as speaking to the children in “languages to which the children did not respond” (sign language and Spanish), and choosing not to attend mental health counseling for “stress and anxiety.” The trial court failed to establish any causal connection between the mother’s religious expression, language used with the children, and the care provided to the children. Similarly, the mother’s expressions of stress and anxiety did not rise to the level of neglect, and the mother’s choice not to attend mental health counseling did not constitute neglect when there was no evidence that treatment was necessary to enable the mother to provide appropriate care for the children.
Update: Matter of Anthony A.R., 188 A.D.3d 697 (2020 N.Y. Slip Op. 06270). Affirmed.
Admin. for Children’s Servs. v. Taicha P. (In re Anthony A.R.), 131 N.Y.S.3d 604 | Casetext Search + Citator
Journal articles and Reference material related to Biased Caseworkers, Judges and Attorneys
1. Susan Stanton, Racial Stereotypes Can Affect Case Management Decisions, CFFPP
https://cffpp.org/racial-stereotypes-can-affect-case-management-decisions-october-5-2012/
2. Dorothy Roberts, How Racial Bias Facilitated the US Child Welfare System’s
Targeting of Black Communities, April 7, 2022, Literary Hub
3. Andrew Cohen, Influencing and Challenging Judges and Their Decisions in Child
Welfare Cases, ABA (Sept. 10,2019)
4. Jerry Kang, What Judges Can Do About Implicit Bias, 57 Ct. Rev. 78
(2021)
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4033906
5. Jerry Kang, Judge Mark Bennett, Devon Carbado, et al, Implicit Bias in the
Courtroom, 59 UCLA L. Rev. 1124 (2012) https://www.uclalawreview.org/pdf/59-5-1.pdf
6. Bernice Donald, Jeffrey Rachlinski and Andrew Wistrich, Getting Explicit About
Implicit Bias, Volume 104 Number 3, Fall/winter 20202-21 Bolch Judicial Institute
7. Rita Cameron Wedding Ph.D., BIAS CHECKLIST CONDITIONS, BEHAVIORS AND
ATTITUDES WHICH HAVE THE POTENTIAL TO PRODUCE AND MASK BIAS IN
CHILD WELFARE SERVICES, https://www.courts.ca.gov/documents/BTB25-1N-01.pdf
8. Vicki Lens, Judging the ‘Other’: The Intersection of Race, Gender and Class in Family Court (March 19, 2018). Lens V. (2019). Judging the “Other”: The Intersection of Race, Gender and Class In Family Court. Family Court Review 57(1),72-8.
9. Amy Mulzer and Tara Urs, However Kindly Intentioned: Structural Racism and Volunteer CASA Programs, 20 CUNY L. Rev. 23, March 2017, https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1413&context=clr
10. L. Song Richardson and Phillip Goff, Implicit Racial Bias in Public Defender Triage (March 1, 2013). Yale Law Journal, Vol. 122, 2013, U Iowa Legal Studies Research Paper No. 13-24, Available at: https://www.yalelawjournal.org/pdf/1199_pzeey4t1.pdf.