Nebraska Court Requires Notice to NC Parents When Child Taken by CPS

January 9th, 2012 by Robert Franklin, Esq.
A Nebraska judge has declared unconsitutional two state laws because they fail to require the state to notify non-custodial parents when their children are taken into foster care.  Here is an article on the case (Omaha World Herald, 6/13/11).

Back in 2003, Micheal Eggleston had a brief affair with a woman.  They split up, but she soon informed him she was pregnant and he was the father.  Paternity testing proved he was and an order was issued for him to pay child support.

He was ordered to pay child support. But, according to Eggleston, the girl’s mother didn’t want him around, and had “sworn up and down that I would never see” the child.

A judge backed up Eggleston’s version, noting that the woman gave him only a post office box address and that she sent him two letters that constituted “a complete rejection” of Eggleston’s request to become a part of the child’s life.

So Eggleston got on with his life.  He married another woman who had two children whom Eggleston moved to adopt.  But unknown to him, the woman who’d cut him out of his daughter’s life turned out to be emotionally unstable and a poor  mother.  She tried suicide once in April, 2005.  Nebraska’s child welfare agency, the Department of Health Human Services, did nothing in that case to protect Eggleston’s daughter, but when Mom tried suicide again in September of the same year, caseworkers took the girl into foster care.

It should come as no surprise to readers of this blog that, when DHHS took the girl, it kept Eggleston completely in the dark.  Indeed, from September to May of 2006, its sole intention was to place his daughter temporarily with her maternal grandmother with an eye toward returning her to her suicidal mother.  In exact accord with the findings of the Urban Institute’s study entitled “What About the Dads?”, Nebraska DHHS ignored Micheal Eggleston completely.

More exactly still, it did so despite the fact that it had ready access to his identity and whereabouts.  That’s because he’d been paying child support for his daughter to the state agency that receives and disburses same.  That too is one of the major findings of the Urban Institute Study.  According to it, state child welfare agencies routinely refuse to check child support records to locate non-custodial fathers of children being taken from their mothers.

Now, in Eggleston’s case, DHHS says its failure to contact him was all one big mistake.

“We certainly made a mistake in this case — absolutely,” Todd Landry told a television reporter. “We’ve made improvements in our practice and are making sure that our staff are following our policy.”

But was it a mistake or was it de facto agency policy?  Oh, I’m sure they have written protocols for finding fathers, but do they follow them?  The Urban institute study suggests they probably don’t.  So do the many fathers who’ve come forward since Eggleston’s case first went public in 2008.

[Attorney Amy] Sherman and Eggleston both said they have heard from at least a dozen parents, mostly fathers, who have had to battle to get notice that their children were in need.

So DHHS had easy access to Eggleston’s whereabouts, but made no effort to contact him.  The same held true for a dozen other dads and the Urban Institute says it’s a pattern nationwide.  Then there are those two statutes saying notice to non-custodial parents wasn’t required.  Top it off with the fact that the court’s opiniron invalidating those statutes contains citations to cases dating back to 1993 in which the exact same thing happened.  All that means that refusing to contact fathers is less a mistake than a policy.  It’s a policy of keeping fathers out of children’s lives when mothers prove to be unfit.  It’s a policy of prefering foster care to father care.

Moreover, it’s a policy that contradicts the very mission of the agency, family reunification.  As on Nebraska court wrote in 2004 and the judge in Eggleston’s case quoted, “What better and more straightforward method of preserving families could there be … than placement of the children with a fit and willing parent..?”  Good question.  It’s one CPS agencies across the country routinely fail to ask or answer.

As far as I can see, DHHS never did notify Eggleston that his child had been taken into foster care.  That fell to an entity called the Foster Care Review Board that sent him a letter in May of 2006, nine months after his daughter had been removed from her mother.  Astonished, Eggleston got to work gaining custody of the girl.  It took him three years, dozens of court appearances and $50,000 in legal fees to do the job, but he finally succeeded.

Late last year, Fathers and Families went to bat for Washington State dad Solomon Metalwala, another fit father who was battling the state’s child welfare agency for custody of his daughter when she was taken into foster care.  Metalwala was fortunate where Eggleston was less so.  Metalwala got custody of his daughter just weeks after she was taken from her mother.  Why did it take Eggleston so long and cost him so much?  Why should it take a man, against whom there was no claim of unfitness and who had been found fit enough to adopt his wife’s two children, three years to get custody of his own daughter?

Those questions aren’t answered by the article about Eggleston.  But the questions alone stand as a stark reminder of the many ways in which states come between fathers and their children.  The simple fact is that few fathers have the type of resources to battle a state agency for three years in a custody case.  That means that as a matter of fact if not a matter of law, state child welfare agencies can and do take children from fathers at the same time they take them from mothers, irrespective of the fathers’ fitness as parents.

It’s morally wrong, it’s bad for children and it’s fantastically expensive.  When they take children from unfit mothers, child welfare agencies must be required to notify fathers and involve them in children’s lives if possible.

Judge Joseph Troia helped that process along by declaring unconstitutional two statutes that failed to require notification of non-custodial parents when their children are taken from the custodial parent.  Nebraska and federal law require notice and an opportunity to be heard to anyone whose rights may be affected by a court’s action.  Non-custodial parents clearly have a right to assert their claim to custody of their own children when they’re taken into care by the state.  Therefore, any law denying the opportunity to be heard is unconstitutional.  Such was the judge’s unimpeachable reasoning.

And so it goes.  It’s a win for non-custodial parents in Nebraska, and of course the overwhelming majority of those parents are fathers.

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