Child welfare advocates say parents’ right to a jury trial prolongs the time children spend in foster care

Collaborator: The Frontier
Published: 12/21/2021, 8:56 PM

Written By: Kayla Branch 

(OKLAHOMA CITY, Okla.) Chris Calvert works as a meteorologist during the week and as a pro-bono children’s attorney on the side. He’s spent the past year trying to get a judge to appoint him to the right child welfare case to challenge a previous court ruling that makes it take longer to terminate parental rights.

Read this story on The Frontier here.

The Oklahoma Supreme Court ruled in 1987 that the state constitution entitles parents to a trial in front of a jury before their rights are terminated and children in foster care can be adopted. Texas is the only other state that gives parents this constitutional right. 

The wait for a jury trial can extend the time kids spend in foster care waiting for a permanent home, harming their development and wellbeing, Calvert said. 

“We are protecting parents with these jury trials, but we are hurting kids when they are most vulnerable,” he said. “It can literally slow down permanency for years.” 

Once a child has been in foster care for 15 of the last 22 months, the state can move to terminate parental rights. But it can take months or years for a jury trial to proceed. Jury trials in child welfare cases are closed to the public but include a prosecutor, child’s attorney, parents’ attorneys, a judge, jurors and support staff.

The average time Oklahoma children in state custody spent in foster care was 20 months during the 2021 fiscal year, which is in line with the national average. But the 1,350 kids that exited foster care through adoption spent an average of 30 months in state custody, according to data from the Oklahoma Department of Human Services. 

Sarah Herrian, director of the Foster Care and Adoptive Association of Oklahoma, said the state has been able to reduce the time children spend in foster care either through reunification with parents or adoption over the last decade. But legal delays can still slow the process in some parts of the state. 

Rural counties don’t have the resources to hold frequent jury trials — some counties may only have jury dockets two to three times a year with one judge in charge of child welfare cases and others. A lack of state prosecutors as well as attorneys that represent parents also slows down the process. 

An Oklahoma Supreme Court task force made up of judges from around the state found in a March 2021 report that there are “legitimate questions” about whether jury trials are necessary before terminating the rights of parents, and that it’s unclear whether jury trials produce more equitable outcomes for parents. 

“Oklahoma has a systemic problem in achieving timely permanency for abused and neglected children, and delayed and unstable permanency are forms of childhood adversity we exact onto children who are already known to be the most traumatized in the country,” the task force wrote in its report. 

The task force report cited a 2005 study from Arizona that showed courts terminated parental rights around 90 percent of the time for both trials in front of a jury and in bench trials, where a judge hears the case instead of jurors. 

The judges that oversee child welfare cases receive specialized training on children’s issues and are required to show their legal reasoning once they’ve made a decision to terminate parental rights, while jurors are not, said Mike Warren, the associate district judge in Harmon County, who chaired the judicial task force.

The Oklahoma Supreme Court commissioned the report after complaints from foster parents about legal delays in child welfare cases, Warren said. Initially, the report was meant to focus on whether the COVID-19 pandemic had dragged out the time it took to place kids in state custody into permanent homes. But the task force found delays were serious and pervasive even before the pandemic. 

Oklahoma has high percentages of children with multiple adverse childhood experiences, which can include abuse or neglect or having a parent with mental health or substance abuse issues.

Researchers have linked these experiences to a child’s increased risk of physical and mental health problems, and likelihood of incarceration, suicide and addiction. Prolonged time in foster care can also contribute to childhood trauma. 

The right to a jury trial isn’t the only thing that delays court proceedings, though, said Tsinena Thompson, president of the nonprofit group Oklahoma Lawyers for Children. 

Placing children in a permanent home can take longer if there is more than one child involved. Lawyers and judges don’t like to hold successive trials for the same parents when there is a large family, which can mean waiting until all children have been in foster care long enough to file to terminate parental rights.

Some children may not want their parents’ rights terminated. And if a child doesn’t have a potential adoptive family or permanent guardian, it may not make sense to terminate parental rights right away, Thompson said. 

Parents with substance abuse or mental health issues may need longer than two years to resolve those problems, she added. And some parents may struggle obtaining drug treatment or mental health services depending on where they live, especially in rural areas. 

Neglect associated with poverty is the most common reason families are involved with the child welfare system, according to DHS officials. 

“When we have parents that are working on their issues that they need to correct, then it is not unreasonable to ask for more time,” Thompson said. “When you really think about justice and fairness, we have to take into consideration those things. There are a lot of nuances.” 

After a jury trial, the appeals process can make the wait for permanency even longer. 

Laura Stoabs has been a foster parent for six years. She and her husband are foster parents to the two youngest children of a family of four siblings who entered state custody in late 2018. After appeals and court delays, the kids are still in state custody and the Stoabs’ adoption of the two children has been put on hold. 

The children’s parents lost their parental rights after a jury trial in May 2019 but appealed the decision. The state Supreme Court upheld the termination, but it took 12 months to get the ruling. Later, one of the parents asked for a new trial. Another 12 months passed before the Supreme Court granted the request. 

Now the kids are back at square one, waiting for a new trial date. 

“I believe everybody should have their day in court. I believe they should have every opportunity to get their children back,” Stoabs said. “But at some point, these children have to have rights as well, and they need to know when they’re going to have permanency.” 

But it’s a hard balance to strike, Stoabs said. She isn’t sure getting rid of the constitutional right to a jury trial is the answer. Instead, she believes the state should do a better job sticking to deadlines in the appeals process and figuring out ways to speed up jury trials. 

“If we stuck to the boundaries that are already in place, I think it would be a good place to start,” Stoabs said.

Advocates for parents also have concerns that getting rid of jury trials could take away the last step for biological parents to get their kids back. Getting rid of the right to a jury trial could disproportionately affect minority families, who are overrepresented in the child welfare system and typically don’t have full access to needed social services prior to involvement in the child welfare system.

State lawmakers met at the Oklahoma Capitol in September to study the problem of delays in child welfare court proceedings. One mother who spoke at the hearing said she and a growing number of parents and grandparents feel their rights as biological family are already being dismissed as they are made to “jump through the hoops of family court judges and undue punishment with no evidence of a crime that was ever provided.” 

She questioned why children are taken from their families if the parents aren’t facing criminal charges for abuse or neglect and why a family court judge would have jurisdiction rather than a criminal court. 

“We have constitutional and parental rights that shouldn’t be violated,” the woman said. “We will continue to let our children know that we will never stop fighting for them.”  

If the Oklahoma Supreme Court overturned parents’ right to a jury trial, cases would move forward fairly similar to how they do now. But instead of a jury trial, a final hearing would take place in front of a judge. 

While there might be other reasons for delays in child welfare cases, Calvert believes getting rid of jury trials would be one of the most direct ways to help fix the problem. 

“We know that jury trials delay permanency,” Calvert said. “Since we know that, getting rid of it means we are guaranteed to get timelier permanency.”

As Calvert waits to find a case, the state is turning to adjustments like increasing the use of pre-trial mediation and alternatives to adoption such as offering legal guardianship rather than total termination of parental rights.

While the law has historically prioritized the rights of parents, the best interest of the child should be of at least equal importance, Thompson said. 

“Parents’ rights should not be greater than a child’s,” Thompson said. “Children are much more vulnerable.” 


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