Child Protection and Mediation Background

Child Protection in the United States

Children are brought into the child protection system when there is reason to believe that abuse or neglect has occurred. Children are taken into custody when it is believed that they are in danger from their parent or guardian due to abuse or neglect. When this happens, finding children a safe and permanent home is the main goal of the system. This is traditionally done through a combination of court hearings and case management to ensure the provision of necessary services for the natural parent(s) and children, as well as to ensure visitation between them.

In its ideal form, the child protection system would engender a non-adversarial process in which child welfare agencies, attorneys, family members, and the court work in concert to establish a safe and permanent placement for children as quickly as possible, whether that placement is with their natural parent(s) or elsewhere, while also protecting the rights of the family. Nonetheless, those involved in the child protection system agree that it tends to be adversarial rather than cooperative, with some noting that it must necessarily be adversarial because of its fact-finding mission. Within this mission, the professionals* have different roles to play that often put them at odds with one another. Further, the system is not set up to deal with interpersonal conflicts among family members and between family members and caseworkers that can stall progress toward permanency for children. The adversarial context also makes it difficult for caseworkers charged with ensuring the welfare of the children to collaborate with attorneys for the state, children, and parents.

Mediation in the Child Protection Context

It was due in part to the impact of such issues on children that the United States Department of Health and Human Services created the Court Improvement Program in 1993, which funded initiatives to enhance family preservation, assist in child abuse prevention, and to provide services to at-risk families. This program was reauthorized as part of the Adoption and Safe Families Act of 1997 (ASFA).

ASFA outlines three primary outcomes that the child welfare system should achieve: safety for the children in care, a permanent home for children in care, and child and family well-being. The emphasis in these three outcomes is on maintaining the family structure while ensuring the safety of the children in a permanent home that is preferably with their natural family. The achievement of permanency for children in the state’s care in the shortest possible time is a part of this emphasis.

In the context of child protection cases, mediation is a non-adversarial process facilitated by a neutral mediator (or two mediators in a co-mediation model) who encourages communication between those involved in a case while also leveling the playing field so that all have a say in the outcome. Those in attendance are generally the natural parent(s), other family members most involved in the child’s life, the attorney for the child and the caseworker in charge of services and supervision of visitation (if needed). In many programs, parents’ attorneys also attend, as does the attorney for the government. In mediations occurring post-adjudication, foster parents also often attend. Each is given the opportunity to share their view on the case, as well as express any concerns about issues going forward.

Generally, mediation has been found to be successful when focused on identifying an appropriate temporary home for the children, setting up services for the parent(s) and children, and resolving visitation and relationship issues among those involved in the case. Proponents of the use of mediation for these cases have argued that the process benefits families and, by extension, children. Research suggests that parents often deal with the pain of loss of custody of their children by withdrawing from them, which causes the children to feel rejected and vulnerable. The theory behind child protection mediation is that the introduction of a neutral party balances the power of the participants and changes the communication dynamic in the case. In doing so, mediation allows all those involved in the case, including the parents, to give their point of view on an equal basis.

Giving parents voice – allowing them to present their point of view, discuss their concerns, and feel that others are listening to them – has been found to involve them more in the case, reducing their feelings of isolation and powerlessness while also increasing their understanding of their treatment plan and their willingness to follow it. It is argued that this, in turn, increases the probability of children returning home, as well as reduces the time it takes to reach permanency, although the evidence of this is inconsistent. It has also been found that giving parents voice can increase the amount of information available to all involved in the case, thus allowing for better decisions to be made about the families’ needs and the placement of the children.

Beyond voice and communication, mediation has been shown to successfully reduce the level of conflict among those involved in the case, particularly between parents and foster parents and between family members and social service providers. It is used widely, as well, to provide a collaborative framework for all involved to problem-solve issues surrounding visitation, placement, children’s services, and other areas. It also used to improve case management and overview.

Because of these benefits, mediation has been put in place in courts around the United States as one way to abide by ASFA. Significantly, most Model Courts around the United States have a mediation program. In addition, the National Council on Juvenile and Family Court Judges has identified mediation as a best practice.

Nevertheless, some have raised concerns about the use of mediation in these types of cases. The main concerns are that the safety of children can be compromised through mediation agreements. Another is that natural parents’ rights can be violated through mediation agreements. This is of particular concern prior to adjudication and at the termination of parental rights stage. The fear of some is that parents waive their right to trial if mediation is done prior to adjudication and they have not had the opportunity to defend themselves against the charges of abuse or neglect. On the other end, the objections to the mediation of the termination of parental rights are two-fold: that since this is the most difficult stage of the case, agreement is not likely to occur, as well as a certain reluctance on the part of those involved in the system to have parents voluntarily give up their rights.