May 01, 2017

Defending Those Who Defend Us: Representing Military Families in Child Welfare Cases

Annick-Lenoir Peek

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

As an attorney representing families in the child welfare system, chances are you will either represent a parent in the military or one of their family members in a child welfare proceeding. Some quick facts:

  • The United States military consists of over 1.3 million active duty personnel.1 

  • The average age of the active duty force is 28.5.2 

  • Over half of military members are married.3 

  • Overall, 41.1 percent of military members have children.4 

  • Approximately 70 percent of military families live in the civilian community rather than on a military installation.5

Before tackling some practical tips on representing military families in child welfare cases, it is helpful to understand the extent of child maltreatment cases involving military families compared to the civilian community. In the civilian population, less than 10 children per 1,000 are found to have been abused or neglected.6 In the military population, less than six children per 1,000 are found to have been abused or neglected.7 But are there circumstances unique to the military population, such as deployments, affecting the incidence of child maltreatment?

Do deployments contribute to child maltreatment?

Contrary to urban myths, television dramas, and sensational news segments, the correlation between military deployment and child abuse is not supported by empirical data. Military members have sustained frequent and multiple deployments to Iraq and Afghanistan in the 15 years since 9/11. Part of the social lore is that stressed-out military families, both the parents left behind and families being reunited upon return, have increased child welfare involvement. The question is whether or not the stress leads to increased child maltreatment? 

Due to concerns over deployments and how they affect military families, the Department of Defense (DoD) asked the University of Minnesota’s REACH program to review research addressing whether or not abuse and neglect increased as a result of deployment. The review looked at data collected during deployments and after the military member’s return from deployment. The studies reviewed found little correlation between deployments and abuse and neglect. Instead, the review found other factors common to nonmilitary families, such as single-parent households, younger parents and families with other stressors (like caring for family members with illnesses or special needs), were more likely than deployments to indicate possible child maltreatment.8

Attorneys should use this information to dispel myths about links between child maltreatment and deployments. These myths hurt clients who seek custody of their children. When representing a military parent suspected of abuse or neglect, use the strategies below to help your client keep or regain custody of their children.

Representing a Military Member in Child Welfare Cases

Key Strategies

Does the Servicemembers Civil Relief Act apply in my case?

The Servicemembers Civil Relief Act of 2003 (SCRA) protects military members who are unavailable to participate in court proceedings by staying their case. The most important thing to know about the SCRA is that a motion to stay has to be filed before any responsive pleading. To qualify, your client must be actively serving in the military and unavailable for court due to their military duties. The protection is available whether the client is serving abroad or stateside. The only requirement is that because of their service, military members are unable to participate in the proceeding. 

To request an initial 90-day stay, counsel needs to obtain a letter from the client’s command regarding the client’s unavailability, amount of leave accrued, and when they expect the member to be available for court. Your client should also provide a letter explaining why he or she cannot participate in the initial stages of the case. Additional extensions can be sought if the military member remains unavailable.

Note that the SCRA does not stop time! Judges are free to enter temporary orders protecting the child as needed. Help your client identify goals and options for placement as soon as possible even if they cannot participate in the proceedings.

Can I use the Deployed Parents Custody and Visitation Act in my case?

The Deployed Parents Custody and Visitation Act9 generally does not apply to child welfare cases but is an important tool to consider. The Act protects a deployed military member by clarifying that during any period of unavailability, the temporary change in custody or visitation will not constitute a substantial change in circumstances to modify custody or visitation upon his or her return. The Act encourages the military parent and the other natural parent to give placement preference to each other and work cooperatively.

If you are lucky enough to live in a state10 that has adopted this uniform law, you may be able to use it to assist your client. If the reason the family is involved in the child welfare system is the unavailability of the military parent, entering into a custody agreement subject to this provision may be sufficient to deter child protection agencies from filing a petition or convincing them to dismiss a petition.

Do I need to request an ICPC home study in my case?

Military members are frequently geographically separated from their spouses and extended families. Placement with out-of-state family members requires an Interstate Compact on the Placement of Children (ICPC) home study. Depending on your jurisdiction, the court may also require an ICPC home study before placing the child with an out-of-state military parent. Identify all out-of-state placement options early in the process and submit ICPC requests. Home studies can even be conducted on military bases overseas, although they would not be ICPC compliant, addressing all of the same factors.

Military members are employed, have housing and access to medical services. They, and sometimes their family members, have been through background checks. Their training is documented and verifiable. Their skillset can include useful first aid or medical training that is especially helpful with children with medical or special needs. They have access to DoD schools and other benefits that courts should seriously consider in prioritizing placement. Use the home studies and requests for visits to prevent a child from remaining in foster care.

Should I involve the client’s command in the process?

The Incident Determination Committee (IDC) process is required for all allegations of abuse or neglect involving a military family, whether the action occurred on or off the military installation. In 2010, the IDC model of determining if an incident met criteria for abuse and thereby warranted clinical services and case management was adopted by all branches.11 Instead of the civilian child protective service process of a social worker determining whether allegations are substantiated or not, the IDC determines whether the allegations meet criteria set by the DoD for abuse and neglect by using a standardized protocol.12

It is important to understand the IDC determination does not supersede a child protective service determination and these two determinations can differ. The IDC determination is internal to the DoD and military services with the purpose of supporting military families involved in incidents meeting the IDC criteria, with clinical and nonclinical support services for the victim and offender. The IDC and its determinations run independently of the civilian counterpart, although the outcome and recommended services should ultimately resemble each other. 

The benefit of having the command involved in the decision-making process is it facilitates access to services and makes it more likely the military member will use the services. If you are at odds with the local agency on which services should be completed by your client, use the IDC decisions and recommendations to convince your court of how those services provided through the installation are more likely to succeed. Use any discrepancies to your client’s advantage. For example, if a parenting class is recommended by the local agency but IDC recommended participation in the new parent support program, bring those recommendations to the court’s attention. You will be more successful arguing for your client participating in a program the military is supporting rather than a generic recommendation made for all parents.

How do I access the Family Advocacy Program for services?

To have a combat-ready force, the DoD recognized the need to provide more resources to assist military families. The Family Advocacy Program (FAP) focuses on preventing, intervening with, and treating families experiencing child maltreatment and domestic violence.13

Services provided by an installation’s FAP typically align with child protective services’ recommendations in child welfare cases. Most FAPs provide classes and workshops to strengthen families in such areas as parenting, couples communication, anger management, stress management, and conflict resolution. FAP supports new parents by providing home visits by a social worker. FAP also offers counseling and one-on-one support addressing violence, anger, and parenting.14

These resources are free to military members and their families. Using military installation resources makes it more likely the command will allow the military member to participate in those services as part of their duty day or that the client’s work schedule will be altered to ensure participation in services.

What unique services might be available in my case? 

If the allegations involve child sexual abuse, serious physical abuse or neglect, consider seeking a referral to the Armed Forces Center for Child Protection at Walter Reed Hospital in Bethesda, Maryland. Its staff of child maltreatment experts can review cases and provide testimony as requested. Parents do not usually have access to experts to support their cases, but with this resource, parents can perhaps disprove the facts alleged by the agencies.

Military and veteran therapists have become the experts in dealing with unique issues related to post-traumatic stress disorder (PTSD) and other mental health issues. If your client is using services available through the military, explain to the court why their methodology is the better approach to take in your case. For example, if a case plan recommends that the client enroll in a specific type of therapy, have these experts explain why a different approach would work better in addressing the client’s diagnosis.

Conclusion

Our military families make incredible sacrifices on behalf of our nation. We owe them the best representation we can offer. Advocates representing military families in child welfare cases should know the legal protections, resources, and services available to military members and leverage them to streamline cases and promote the best possible outcomes. 

Annick Lenoir-Peek, JD, is assistant appellate defender, Office of Parent Representation, North Carolina Indigent Defense Services. 

Endnotes

1. Department of Defense, Office of the Deputy Assistant Secretary of Defense for Military Community and Family Policy. 2015 Demographics Profile of the Military Community, 2015, 3.

2. Ibid., 4.

3. 54.3% are married. Ibid., 4.

4. Ibid., 4.

5. Department of Defense. “Family/Child Advocacy,” undated.

6. U.S. Department of Health and Human Services. National Child Abuse and Neglect System Annual Report, 2017.

7. REACH, University of Minnesota. “Deployment and Child Abuse and Neglect: Understanding the Data,” June 2016, 6.

8. Ibid.

9. The Deployed Parents Custody and Visitation Act was prepared by the National Conference of Commissioners on Uniform State Laws and was approved and recommended for enactment in all states in 2012.

10. As of March 28, 2017, the following states have adopted this Act: Arkansas, Colorado, Iowa, Minnesota, Nebraska, Nevada, North Carolina, North Dakota, South Carolina, South Dakota, Tennessee, and Utah. West Virginia has introduced the bill and is awaiting a vote.

11. U.S. Department of Defense. Department of Defense Manual, Instruction 6400.1- V3, Aug. 11, 2016, 6. 

12 Ibid., 13-14.

13. U.S. Department of Defense. Department of Defense Instruction 6400.1, February 13, 2015, 8.

14. Military OneSource