November 7, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

In Colorado, and seemingly under the threat of a state Court of Appeals decision, state child welfare agencies are starting to try to locate fathers when mothers are charged with child abuse or neglect (Colorado Sun, 11/5/18).  That of course is a good thing, but the new development fairly screams “Why’d it take so long?”

As I’ve written before, back in 2006, the Urban Institute did a study that found that, in over half of cases in which the father’s identity was known, CPS agencies made no effort to locate him.  They preferred foster care to father care despite the fact that the former costs the state significant sums of money and the latter little or nothing.

Now, one of the primary impediments to locating fathers is getting mothers to identify them.
An untold number of kids caught up in Denver’s child welfare system have had a father named John Doe, a practice that went on for decades and made it less likely for children to find permanent homes. When the dad is unknown, so is an entire side of the family that might otherwise step up to care for an abused child.
But of course the dad is almost never “unknown,” or at least unknowable.  The fact is that women almost always know the identity of the man with whom they’re having sex, so they know who’s the father of any resulting child.  Sometimes of course a woman will have sex with more than one man at or near the time of conception, so she can’t know who is the actual father, but she can identify all the possibilities.  The problem being that no one anywhere requires a mother to identify the father of a child.

Yes, if she receives federal benefits under the Temporary Assistance to Needy Families program, she’s supposed to identify the father so he can be dunned for reimbursement.  But if she refuses or identifies the wrong man, there are no consequences to her.  So in fact, she’s free to claim she doesn’t know.

Now, Denver County requires some specific information.
The county, in July 2016, also created a “parentage affidavit” — a document to establish the legal parents. It’s pretty blunt:
It states: “I had sex with the following man/men 45 days before/after conception: (use additional paper if necessary, but included ALL men including the man you believe to be the father of the child).”
Note that the document is called an “affidavit.”  That strongly suggests that it’s signed under oath, which further suggests that false swearing may result in a perjury charge.  Beyond that, however, I see nothing requiring the signatory to tell the truth.  Still, it looks like a step in the right direction.

I haven’t yet located a copy of the Court of Appeals decision that seems to have given rise to the new efforts in Denver to identify and locate fathers.
Now other county child welfare offices are calling Denver for advice on how to remodel their programs, said Jennifer Collins, assistant director of the City Attorney’s Office, human services section. The widespread interest stems from a recent Colorado Court of Appeals opinion that requires lower courts to determine paternity in dependency and neglect cases, which is what Denver began doing in 2016 through its no-more-John-Doe practices.
Hmm.  What the author of the piece refers to as “the widespread interest” in locating fathers looks to me more like a fear of violating the requirements of the law.  After all, if the Court of Appeals is requiring CPS agencies to identify the fathers of abused and neglected kids, that clearly means those agencies are on notice that fathers have the right to be informed of their children’s plight.  That in turn means that the qualified immunity that usually clothes caseworkers has vanished if they fail to identify and locate those fathers.  And that further means that those fathers can sue the state for violation of their civil rights if they’re not so informed. 

In fact, that’s very much what happened back in 2010 in the Ninth Circuit of the federal courts.  I wrote about the case here.  That Federal Court of Appeals ruled that CPS agencies were required to inform fathers of children who’ve been abused or neglected as a matter of those fathers’ fundamental liberty interest in participating in the care, custody and management of their children.  The federal Ninth Circuit is the largest in the nation, but it doesn’t include Colorado, so the 2010 case has no value there as precedent.  But its reasoning can certainly influence other courts and I wouldn’t be surprised to learn that it did so in the Colorado case.

Irrespective of that though the legal requirement that CPS agencies inform fathers of the abuse or neglect of their child so they can exercise their parental rights seems to be spreading.  It should have happened years ago, but, I suppose, better late than never.

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