Social Work & the Courts

A Casebook

Daniel Pollack, Toby G. Kleinmam

• Publisher: Routledge
• Year: 2021
• Edition: 1
• eBook ISBN:
  9781000525434
• Topic: Psychology
• Subtopic: Mental Health in Psychology
• Index: Psychology

Social Work and the Courts is a compendium of the most recent and important legal cases in social work and social welfare. Its dissection and analysis of crucial cases makes it an excellent tool for teaching social workers to understand the legal system and its operation. The book demonstrates how courts view and deal with the performance, action, and conduct of social workers and their agencies. This second edition includes more case studies, paying particular attention to recent cases on foster care and child welfare. In addition, a new section on "References and Further Readings" has been added to the end of each chapter along with an update bibliography and Internet bibliography so that readers may easily find supplementary information.

CHAPTER 1

Child Welfare

Bottoms v. Bottoms

444 S.E.2d 276 (Va.App. 1994)

FACTS: Sharon Lynne Bottoms appealed a circuit court decision granting custody of her son to her mother, Kay Bottoms. Between the years 1989 and 1993, Sharon Bottoms married and divorced her husband, during which time she had a son. She moved frequently and dated both men and women. In 1992, she moved in with April Wade who was and remains her lesbian companion. Also during this time, Sharon was in continuous contact with her mother, who frequently cared for her grandson at Sharon’s request.

In January of 1993, Sharon Bottoms approached her mother regarding her son, stating that due to her mother’s relationship with Tommy Conley, her mother’s live-in male companion, her son would discontinue his visits. Sharon Bottoms revealed that Conley had sexually abused her as a child and she was therefore uncomfortable leaving her son around Conley. Soon after this conversation, Kay Bottoms filed a petition with the juvenile and domestic relations court seeking custody of her grandson. The court granted custody to Kay Bottoms and Sharon Bottoms appealed.

ISSUE: As a matter of law, is a person who is involved in a sexually active lesbian relationship an unfit parent whose rights as a parent may be revoked and custody given to a third party?

DECISION: No. While the Court conceded that “sexual indiscretions in a child’s presence is conduct which may render a parent unfit to have custody of a child” (p. 282), it stated that an open lesbian relationship does not make the parent unfit as a matter of law.

REASONING: The Court steadfastly supported the relationship of parent and child. Generally there is a presumption that a child’s best interests will be served under the care of his/her parents and that the child will be removed from the parents only if there are “compelling reasons to do so” (p. 280). To award custody to a third party, there must be “clear and convincing evidence” of inappropriate parenting.

While Virginia law regards homosexual relationships negatively and lesbian “sexual conduct” is illegal, this court said it was not enough to remove the child from its mother. “A court will not remove a child from the custody of a parent, based on proof that the parent is engaged in private, illegal sexual conduct or conduct considered by some to be deviant, in the absence of proof that such behavior or activity poses a substantial threat of harm to a child’s emotional, psychological, or physical well-being” (p. 282).

IMPLICATIONS: A natural parent is assumed to have a right to custody of his or her child. That right may be overcome by a showing of clear and convincing evidence which serves the child’s best interest. While this would seem to be a beneficial decision for the gay community in terms of parenting rights, the court seemed to imply that had there been an available responsible father, the mother’s parental rights in this case would have been revoked. With the rising number of gay parents, this decision brings attention to issues that courts will examine when deciding a parent’s fitness (Laird, 1993). While this court deemed the “illegal sexual conduct” insufficient to remove the child from the home, a parent’s homosexual relations will be scrutinized and most certainly be at issue in a child custody suit.

Of course, courts must not delay in granting a remedy until a parent’s conduct or behavior has harmed the child; the rule of law does not require that the damage sought to be avoided must occur before a court may act to prevent injury or to remedy a harmful situation. However, before courts may deprive a parent and child of their fundamental rights to be together and to associate with one another, the evidence must show that the parent is unfit and that the child is subjected to conduct and behavior that will harm the child. A court may not simply surmise, speculate, or take notice that because a parent engages in private, sexual conduct, even that which is illegal or conduct that is perceived by some as immoral and antisocial and to which the child is not subjected and which does not affect the child, the parent is unfit or the child is being harmed (p. 281–82).

The National Association of Social Workers filed an amicus brief along with several other national and state organizations. The brief states, in part, that NASW believes

that parent-child bonding, especially during the early months and years of life, is crucial to a child’s development and well-being. Disruption … should be based only on compelling reasons, such as concern for the life, physical safety, and mental health of the child, certainly not on a parent’s sexual orientation (p. 3).

On recent appeal, this decision was reversed and remanded. That court looked to the trial court’s factual findings and determined that Sharon Bottoms was in fact unfit to be a mother. Among the factors that court considered were her lesbian relations. This translated into an issue of neglect, and custody was granted to the grandmother. This reversal exhibits the judiciary’s conflict with gay parenthood and this new area of law (Pershing, 1994; Cox, 1994). Since the illegality of homosexuality in Virginia played a major part in the reversal, this might indicate that this state policy has a greater influence on the rights of homosexuals than the lower court had postulated. Thus, the extremely divergent views displayed in this case by different courts, exemplifies society’s range of perspectives regarding this issue.

REFERENCES

1. Cox, J. (Summer 1994). Judicial enforcement of moral imperatives: Is the best interest of the child being sacrificed to maintain societal homogeneity? Missouri Law Review, 59, 775–805.
2. Laird, J. (1993). Lesbians and lesbian families: Multiple reflections. Smith College Studies in Social Work, 63 (3), entire issue.
3. Leonard, A. (Summer 1994). Lesbian and gay families and the law: A progress report. Fordham Urban Law Journal, 27, 927–972.
4. Pershing, S. (Summer 1994). Defining family: Gays, lesbians, and the meaning of family: “Entreat me not to leave thee”: Bottoms v. Bottoms and the custody rights of gay and lesbian parents. William & Mary Bill of Rights Journal, 3, 289–325.

In re Kirchner

164 I11. 2d 468 (1995)

FACTS: Otakar Kirchner and Daniella Janikova were involved in an intimate relationship over a period of about two years. During that time, Daniella became pregnant, and sometime later the couple began to make plans to marry. Shortly before the birth of their child, and still not married, Otakar returned to his native country for two weeks to care for a dying relative. Daniella, believing Otakar had left her for another woman, gave up any hope of marriage and through the advice of a friend, decided to put her child up for adoption. Within a matter of days, the adoption proceeding was underway, and the “Does” were ready and willing to adopt Daniella’s unborn child.

Meanwhile, Daniella, knowing that Otakar would not consent to the adoption, planned a scheme with the Does and their attorney to pretend that the baby had died at birth so as not to raise suspicion in Otakar. No attempt by any of the parties involved was made to contact Otakar or to inquire as to his whereabouts.

Before the birth of the child, Otakar returned to Chicago. Sometime thereafter, the couple reconciled and in September 1991 married. Prior to the marriage, on March 16, 1991, Daniella gave birth and proceeded with the scheme to keep Otakar in the dark about the adoption, giving him the false impression that the child had died.

Otakar, suspicious of the circumstances surrounding the baby, began an immediate investigation by inquiring at the original hospital where the birth was to have taken place. Almost two months later, Daniella finally confessed to having given up the baby, Baby Richard, for adoption and lying about the baby’s “death.” At hearing this news, Otakar immediately took steps to get custody of his child. On June 6, 1991, Otakar’s lawyer entered an appearance at the adoption proceeding at which time the Does should have legally turned over the child to his father. From this point on, the Does fought for the custody of the child over a period of several years, claiming that Otakar’s parental rights were terminated as he was an unfit father. Four years later, the Illinois Supreme court heard Otakar’s petition asking the Does to turn over his son.

ISSUE: May a child be available for adoption if parental rights have not been properly terminated?

DECISION: No.

REASONING: The “best interest of the child” standard is not used until parental rights have been properly terminated. The court voted that “parents may be divested of parental rights either through their voluntary consent or involuntarily due to a finding of abuse, abandonment, neglect, or unfitness by clear and convincing evidence” (p. 476). The court unanimously agreed that during the first 30 days of Baby Richard’s life, Otakar had demonstrated sufficient interest in his child, and therefore he should not have been found to be “unfit.” In a series of U.S. Supreme Court decisions [Lehr v. Robertson, 103 S.Ct. 2985 (1983); Michael H. v. Gerald D., 109 S.Ct. 2333 (1989)], the principle has been firmly established that unwed fathers enjoy all constitutional rights if they face and claim their responsibilities of parenthood.

Consequently, the writ of habeas corpus sought by Otakar was granted.

IMPLICATIONS: This case indicates that, “It would be a grave injustice not only to Otakar Kirchner, but to all mothers, fathers and children, to allow deceit, subterfuge …, together with the passage of time … to inure to the Does’ benefit at the expense of Otakar and Richard.” Courts demand that plaintiffs must come into court with “clean hands.” The best interest of a child will not substitute for due process of law.

In re Marriage of Kovash

858 P.2d 351 (Mont. 1993)

FACTS: Kathleen and Myron Kovash married in 1976 and separated in 1990. During their time together they had four boys. Among the reasons for the separation were episodes of violence between Myron and several family members. Kathleen sought a temporary restraining order against her estranged husband and spent a month in a battered women’s shelter. Terms of the restraining order included strictly supervised visitation and telephone conversations between Myron and his sons. Because of the children’s reactions to the conversations with their father and the subject matter of the conversations, the supervising social worker and a child protective officer involved in the case recommended either therapist-supervised interaction between the children and their father or termination of any contact until Myron had sought out professional help.

In a trial for dissolution in December of 1991, the court granted unlimited visitation. But in the following year, August 1992, the District Court terminated all contact between Myron and his children contingent upon certain conditions. It is this decision that Myron appeals.

ISSUE: May a court change the terms of a temporary custody order without definitely identifying a change in circumstances of the parties?

DECISION: Yes. When a court finds circumstances to grant a temporary order, it is looking at the specific circumstances “determining the best interest of the child with regard to temporary custody pending resolution of the action” (p. 355). Thus, a permanent order can be issued and will be issued in cases where circumstances have not changed or have worsened.

REASONING: The court, citing the earlier case of In re Marriage of Allen [771 P.2d 578, Mont. (1989)], stated that temporary custody acts only as an “initial determination” from which further findings can be made. Myron’s actions were found to be dangerous, both before the temporary order and at the time of the permanent order. The court referred to the best interests of the children throughout the process, and it is for this reason alone that the temporary order was issued without a formal hearing.

If changed circumstances are required to be proven before modifying temporary custody orders, parents would be forced to litigate temporary custody. This result would be contrary to the purpose of the statute. Therefore, we hold that the District Court was not required to find a change in circumstances before modifying the temporary custody order (p. 355).

Thus, Myron’s argument that a change of circumstances had to occur before the final custody order was issued is not a valid argument. As for custody of the children, the court stated that its standard of review “is whether substantial credible evidence supports the court’s determination” [p. 356, citing In re Marriage of Fesolowitz, 852 P.2d. 658 (Mont. 1993)]. While joint custody is normally preferred, the testimonies of several persons involved in the case were substantial enough as credible witnesses to show that Myron was dangerous and that the welfare of the children would be jeopardized if he were to be permitted unlimited unsupervised visitation and joint custody.

IMPLICATIONS: This ruling is important for two reasons. In many, if not most situations, where a temporary order is sought out, the situation is grave. Acts of violence are in the process of being perpetrated, and the victim needs to get to safety immediately. If the courts were to institute a lengthy period of discovery in order to ascertain the specifics of the situation, many women and children could be severely harmed. Furthermore, once the temporary order has been issued, courts and social workers have a period of time in which to determine the facts and at that point ascertain if the temporary order was necessary and remains so (therefore providing a reason for a permanent order) or if the circumstances have changed such that the order can be lifted.

Social workers are faced with this type of situation frequently. They are called upon to use their best judgement in predicting future behavior based upon present actions.

Sherman v. Sherman

1994 Tenn. App. Lexis 660

FACTS: This case concerns visitation rights between a father and his childr...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Detailed Table of Contents
• Issues & Decisions
• Table of Cases
• Acknowledgments
• Introduction
• How to Use This Book
• Chapter 1 Child Welfare
• Chapter 2 Social Worker Liability & Immunity
• Chapter 3 Mental Health Issues
• Chapter 4 Aging
• Chapter 5 Women
• Chapter 6 Income Support
• Chapter 7 Social Workers in Court
• Chapter 8 Social Workers as Employees
• Chapter 9 Miscellaneous
• Glossary
• Recent Bibliography
• Index