Foster Parent Friday: Mediation???

Q: Mediation...What's that? (often more body language in a way to say...what does that mean for your life or in the case and how does that work?).

A:  Our case went to mediation on Wednesday.  Of course this means that in the weeks leading up to the big day we asked everyone we could for prayer that things would go smoothly.

In all honesty, I had a hard time asking for specific prayer.  What I wanted to say and we said in private was "PLEASE GOD LET THEM RELINQUISH!" but my mommy heart knows that termination of parental rights for any situation, voluntarily relinquished or not, is by nature trauma.  Yes, it can be the right answer but it still is finality for birth parents losing their children and it means our children were permanently removed from their birth parents.  Big mixed feelings.  Thankfully a sweet friend of mine called it out and said "OK...we'll pray they relinquish their rights and the babies can stay with you forever".  Thank you sweet friend for saying out loud what I'd been feeling in my heart.

As we've told people about mediation many times they've got that confused look on their face, wanting more information.  Being a foster parent is about people always wanting more information and I can't blame them.  People tend to know the concept of mediation - its a legal process where people get in a room and try to work out a deal - but how that relates to foster care is a bit foreign.  So here's my explanation.

Have you ever watched Law & Order (come on - certainly you have right!)?  Or any other police/lawyer drama/documentary?  You know when the DA offers a deal to the accused criminal...they say something like "we'll give you 15 years instead of life" and then there is a back and forth with the attorneys trying to come up with a deal?  The DA will say something like "Ok - we'll go to trial and you'll go to prison for life" or the defense attorney will say something like "Are you kidding?  You're evidence is circumstantial...we'll take our chances with a jury".  Though this isn't officially mediation, it gives you a good feel for how mediation is used in termination cases.

At the point a trial is going to termination, theoretically CPS and the DA that represents the department have decided that for some reason the birth parents are not safe for the children despite having been given every opportunity to do so.  In my experience, this usually happens at around the 6-9 month marker in a case because federal law requires cases to be done in 12 months, 18 with extenuating circumstances.  So at the 6-9 month point in a case a formal decision is usually made to keep going toward reunification (and start working the kids towards that with more frequent visits, maybe setting a go-home date, etc.) or the department decides to formally change the case goal to termination (and relative adoption, non-relative adoption, permanent managing conservatorship, etc.).  This means the case "will be going to trial", a trial date is set if one isn't already on the calendar (in my experience they put one on the calendar at the beginning of the case to mark the date and protect the judges calendar) and people in the case start working toward that goal.

Though the department sets the official case plan goal there are many other people who have to get aligned around that for termination to occur.  Certainly there are the named mother and father (or "unknown father" if that's the case) but there is also the Attorney Ad Litem (kids attorney) and Guardian At Litem (CASA or the AAL) also have to agree.  In some cases there are also people who have intervened in the case because they have a significant relationship with the child (could be a grandparent, aunt/uncle, cousin, brother/sister, or even longer term foster parents).  Just as in the Law & Order case, in order for trial to be successful evidence has to be strong but the list of people wanting to see "guilty" (termination) needs to be longer than the list wanting to see "not-guilty"...the goal is whenever possible to have trial work out in your favor.

In comes mediation...I believe it's either a rule OR at least best practice that mediation occurs before a termination trial.  Though much of the work is done ahead of time, mediation is a formal time for all parties to come to the table and try to work out a deal so that when trial comes the mediated agreement is presented to the court and the judge can make a final order (ruling) about the case that represents what everyone is in agreement with.  By doing this, trial is avoided and presumably the best interest of the kids has been preserved.  There's less risk that the judge will dismiss the case or the department will lose and the kids will be immediately sent back to an environment the dept. feels is unsafe.

The department's goal in mediation is typically to have the biological parents surrender (relinquish) their parental rights.  For a parent, surrendering rights voluntarily is usually better than having them terminated from a legal perspective.  Bluntly, if you have your rights terminated by the court (non-voluntary) you might have a goodbye visit and then you will never see your kids again.  Ever.  Furthermore in the state of Texas you are then subjected to automatically losing any future children you have, even if you get your life together.  Non-voluntary termination is grounds for both removal of a child and termination on future children.  That's a big deal in my book.  Most parents who love their children and have good attorneys will start to see the writing on the wall and be able to weigh the consequences of voluntarily relinquishing vs. taking their chances with the trial (judge or jury...it can happen either way).  The stronger the case is, the more likely a parent is to consider relinquishment.

To help relinquishment be a more desirable option for the birth family, the other parties usually come to the table with some sort of proposal that offers future contact, setting up a semi-open adoption rather than a closed one.  The minimum I usually see is cards/letters/pictures once a year to give the birth parents the chance to see their kids grow from a far.  When the case is remarkably strong and especially when there appears to be a serious danger to the child/adoptive family with contact, this may be all that is offered.  Anything can be on the table as a proposal including phone calls, in-person visits, medical records, or pretty much anything else that might be important to one of the parties.  This mediated agreement can also allow the family and children to have a healing, long-term relationship, keeping the parents in the kids' life without having them be the day-to-day parent any longer.

In Summer's adoption we agreed to have cards/letters/pictures twice a year and visits 2x a year.  Twice a year visits was "unheard of" as it was presented to us back then. In my sister's case, the agreement included quarterly visits, which seemed like A LOT.  We also included several stipulations that are fairly common including if 2 consecutive visits were missed, if they violated our privacy, if a professional indicated the visits were hurting her, or if when she turned 12 she decided she didn't want to visit anymore, the visits would cease and there would be no more agreement.  The agreement was null after the first 2 visits passed and the parents did not visit.  We continue to have a relationship with them nonetheless.

So - you're dying to know - how did our case turn out?  It's not over yet.  You'll need to stay tuned, like us, to hear the rest of the story.