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Abuse and neglect cases involve constantly changing facts. They “are unlike civil cases, which typically involve only facts gone by ... The ultimate parties in interest are the [children] themselves. And for them, their lives are ... ongoing event[s].” A child’s need to return to his parent may ebb or flow. His parent’s fitness may improve, regress, or remain the same. Federal law, followed in all states that wish to receive federal funds to support foster care, requires regular permanency hearings so family courts can make decisions based on evolving factual situations. These decisions, and the lack of greater procedural protections around them, are the focus of this Article. These decisions are important because they can set the course of children’s life for years, if not their entire childhood. They are also designed to create the real-life facts that will lead to achieving the permanency plan chosen; thus, they shape the “ongoing events” that will become the factual basis of later termination of parental rights or other permanency trials.

The absence of greater procedural protections in hundreds of thousands of abuse and neglect cases that reach this middle stage leads to poor decisions in abuse and neglect cases; creates unnecessary harm to children even when incorrect decisions are reversed later in a case; and, at least in some cases, violates the due process rights of parents and arguably of children. The federal government (which created the legal structure that states follow to obtain foster care funding), state legislatures that write laws governing abuse and neglect cases, and state courts adjudicating abuse and neglect cases should change child abuse and neglect laws to address these problems.

Part I of this Article will outline existing due process protections in abuse and neglect cases, particularly those protections that exist between an initial adjudication of abuse or neglect and a final decree permanently affecting a child’s relationship with his or her parent, including those protections required by federal law and states’ implementation of those protections. Part II addresses the argument that due process requires more meaningful procedures. Part III will explain the policy argument — beyond the due process considerations of Part II — that support meaningful trial court procedures and appellate rights. Part IV will also discuss why alternative means of filling this due process donut hole fail to satisfy policy concerns.


Family Law | Juvenile Law | Law