DHR

DHR Safety Plans: An Illusion of Consent

Typical Scenario: Some secretive allegation of abuse or neglect (a Child Abuse/Neglect report or CA/N in DHR lingo) is made against an Alabama parent. Typically, the parent is scared and uninformed about their rights when DHR social workers show up. Either expressly or impliedly, DHR social workers threaten to “take” the children “into DHR custody” unless the parent “voluntarily” consents to a safety plan.  Parent reluctantly  agrees to allow the child stay with a grandparent or aunt or other family member. The parent is separated from their child or children and has practically lost custody.

According to the Alabama Administrative Code,

“Safety plans are developed to protect children from safety threats when the parents’/primary caregivers’ protective capacities are insufficient…Out of Home (Non-Foster Care) Safety plans [are] designed to provide protection for children whose parents, legal custodians, or primary caregivers agree for them to live temporarily with others (e.g., relatives, neighbors, friends). The agreement is made between the parents, legal custodians or primary caregivers, the child welfare staff and the person responsible for providing protection. The home of the person providing protection does not have to be approved as a foster family home. As part of the safety plan approval process, child welfare staff shall make a visit to the home prior to the child being placed, except in emergency situations, in which case a home visit is made no later than the next calendar day or with supervisory approval the next working day.

Safety plan “agreements” can, like anything, be abused. Most parents don’t feel the process is “voluntary.” The threat of their children being placed in state foster care is beyond imaginable for most families. So, many parents will “agree” to anything to avoid that possibility. Additionally, as one study showed, parents describe the social worker’s perceived power over them as negative, “absolute,” “tyrannical,” indomitable, and “frightening.”

Safety plans really became in vogue in Alabama in the wake of the federal lawsuit and settlement known as the R.C. consent decree. R.C. placed an incredible amount of pressure (legal and financial) on Alabama DHR to decrease its foster care roles. So, in order to decrease the number of children “in care,” instead of running to court to obtain an emergency pick-up order ex parte from a judge, DHR started employing out-of-home safety plans.

Originally, there was no time frame for how long these out-of-home safety plans could last. Currently, the maximum timeframe that an Out-of-Home Non-Foster Care safety plan can be in place without court involvement is ninety (90) days.  AL Admin Code. Accordingly, if a child remains out-of-home for 90 days or longer, DHR must file a dependency petition in Juvenile Court to sustain that out-of-home placement.

Safety plans generally avoid the judicial process. By relying on a family’s “voluntary” consent to an out-of-home placement, DHR is permitted to circumvent the need to provide due process protections to the family (No counsel, no court supervision, no ability to confront or even know accusers, etc.) As such, parents experience separation from their children without due process of law.  On the otherhand, when a dependency petition is filed, several hearings are had. At each, DHR bears the burden of proving that there is probable cause to suspect the child has been abused or neglected and that immediate removal was (or was) warranted.

Can a family reject a proposed safety plan? ABSOLUTELY!! However, such decision is ripe with danger. Such decision should be based upon the specifics of the allegations, the nature of the proposed safety plan, and only UPON ADVICE OF COUNSEL. (Seek counsel of a lawyer familiar with protective service law at this point.) A rejection of a proposed safety plan may cause of DHR to proceed immediately with judicial intervention. (Get a lawyer, if you haven’t already.) DHR possibly (and likely) can get a judge to issue an emergency pick-up order (without your presence or input.) (Again, get a lawyer.)  In such a scenario, you would have an emergency hearing within 72 hours before a judge, but your children may spend that time in foster care. (If I haven’t said it before, get a lawyer.)

Many don’t know that, even after safety plan agreement is in place, it can be terminated at any point by any party. So for instance, a child is removed from a mother’s home due to an allegation of neglect and the child is placed with the maternal grandmother. Two days, ten days, thirty days later: the mother can unilaterally end the agreement and demand her children back. Again, DHR would be in a put-up-or-shut-up situation. DHR would be forced to decide whether to acquiesce or seek a judge’s order and scrutiny.

To sum it up, get a lawyer when DHR shows up. I can think of scenarios wherein a person charged with some criminal offense might not need to hire a lawyer. I cannot think of any scenario involving your children, allegations of neglect or abuse, and DHR in which I could say the same.