CARC Newsletter Winter 2021 2022 - Articles

Table of Contents

Click on the article you wish to read, or scroll down through them.

                  

Introduction: What is CARC?  Where has the newsletter been?

         

The Children’s Advocacy Resource Center (CARC) has been a project of Kansas Legal Services since 1999. 

CARC is a statewide program dedicated to providing legal advice or services to families caring for children in or at risk of entering the foster care system and to legal professionals that represent children or work as Guardians ad Litem. 

Under the CARC program, Kansas Legal Services operates a Guardian ad Litem/foster care hotline that takes direct calls from foster families, foster youth, grandparents, community direct service providers, and others throughout Kansas in order to offer advice, representation, resource referral, or technical assistance on child welfare-related issues in Kansas. 

Additionally, this CARC Newsletter issue marks the revival of the newsletter, a resource for child-related legal issues, updates, and spotlights on other child-focused programs and projects throughout Kansas. Now it has a new logo and a new online presence, instead of being snail-mailed!

It is our hope that this newsletter will help educate the Kansas legal community about changes in law within the state and expose the legal community to other resources in our community. 

Please consider sharing this newsletter link with peers and colleagues who have an interest in child welfare and child legal representation, and please let us know of information and resources that our community would benefit from hearing about. We have a brief (two minute) survey to get your input on what issues most interest and concern you about children at risk in Kansas.

Finally, thank you for the work you do to improve the lives of children throughout Kansas. 

Sincerely,

Kerrie Lonard, Managing Attorney, Kansas Legal Services - Topeka, and the Kansas Legal Services CARC team.

 

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What Foster Parents Wish Attorneys Knew About Them

by Debbie Ausburn

This article is printed with permission from The Guardian, Volume 43, Number 02, Summer 2021,
a quarterly law journal published by the National Association of Counsel for Children (NACC).

I understood but was saddened by my foster daughter’s cynicism. My husband and I had accepted her placement several years earlier, but her chronic depression and suicide attempts had outpaced our ability to help her. We asked the agency to place her somewhere that could give her a higher level of care. She did well in the new placement, stayed connected with us, and 18 months later, we were back in court for the judge to decide our petition for guardianship. It was a momentous decision for our family, but a routine petition for the system. Most of the people we encountered during the process meant well, but somehow their combined efforts created a system that was creaky, unyielding, and riddled with holes for kids to fall through. In my foster daughter’s phrase, they simply “checked the boxes” as they moved her case through the system. 

 

As a lawyer and foster parent, I have seen the system from many angles. During all my years as a foster parent, I cannot recall ever having talked to any court-appointed special advocate (CASA) or guardian ad litem (GAL) appointed for one of my children. Early in my foster care service, our jurisdiction did not have either a CASA or GAL program. But even when I moved to a county with active programs, I never heard from my child’s advocate. Children can never have too many adults who care about them. I still do not know what information the advocates provided to the court or where they learned it. If any of them had asked me for my opinion, these are some things that I would have told them.

 

First, we may not have the expertise of therapists, doctors, or teachers, but we know the child’s day-to-day life. Those experts only know a part of the child’s life; we are the experts on how all the pieces of our child’s life fit together. We have lived with the night terrors or screaming fits triggered by what we thought were innocuous events. We generally have suffered along with the child as they struggled to complete homework or deal with not being able to visit with their parents. Foster parents may not have impressive credentials, and we are far from perfect, but we do have information that you need to know. Most of us care about them as much or more than any other adult you will hear from, and we will have a perspective that no one else has.

 

Second, take the time to listen to us. The law presumes that the caseworker will relay our information, but we often are at odds with the agency, and caseworkers sometimes do not have the time to gather all the facts about the child. We want you to know the challenges and rewards that come from parenting a child who has suffered trauma. Our challenges can be lonely at times. Therefore, when we get a chance to speak to you, we may vent and tell you more than you have time to hear. Give us time to tell you the story of the child’s life with us.

 

Third, and importantly, take the time to get to know and listen to the children you represent. As a lawyer, I understand how hard it can be to manage a heavy caseload of clients who want advice today and not when time permits. I see court-appointed advocates shortening conversations with children. They tend to focus solely on a few facts or issues and ignore everything else. Children, however, rarely understand what is relevant to their case and tend to concentrate on what is important to their emotions. Let them have their say. When they feel that they have been heard, they are more willing to trust your advice.

 

Finally, work hard to be objective. As a court-appointed advocate, your job is to be an advocate for the child. You can only do that well if you first get all the facts and sort through them objectively. It may be hard to stay objective as you go through these high-emotion cases. They may start falling into a pattern, and it can be very tempting to put every fact into an already neatly labeled box.

 

There is no doubt that preordained narratives abound. We often see stories of false accusations and rushed investigations. Not every case fits a usual pattern. More importantly, each case is unique to those of us whose lives you touch. Don’t give in to shortcuts that can compound a child’s trauma and delay their healing. Take your time before you decide who is the villain and who is the hero.

 

In our case, the guardian ad litem apparently decided, even without meeting us, that we were appropriate guardians. We brought our daughter home and cared for her until she left as an independent adult. Yet, even with the ending that we all wanted, the process undermined our already shaky faith in the system. As a foster parent, that result saddens me. As a lawyer, it frightens me. If we decide to be part of the system, whether as an attorney or court-appointed volunteer, we need to do all in our power to make it work for the children caught in it.

 

In my foster daughter’s case, “checking the boxes” turned out well because all of the other pieces were in place. For less stable situations and parents without a lawyer’s resources, a rote investigation can be devastating. So, the next time you have a case involving a foster parent, give it the time it takes to get all the facts. Recognize that, even if we aren’t professionals, we are the experts about our children’s daily lives. Take the time to listen to what we know about those children. Finally, don’t cast us as the villain or the hero before you hear all of the facts. We need your objectivity as much as the Court does.

 

About the author:  Debbie Ausburn is a lawyer in private practice at TaylorEnglish.com, defending and advising youth-serving organizations in cases ranging from minor injuries to claims of sexual abuse. Debbie’s new book, Raising Other People’s Children, tells of her adventures as a foster parent and step-parent, and the lessons that her children taught her about parenting. She blogs at OtherPeoplesChildren.org, and can be found online at DebbieAusburn.com.

 

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Case Study 

by Lowell PaulKansas Legal Services

 

In re M.F., 312 Kan. 322, 475 P.3d 642 (2020)

In re W.L., 312 Kan. 367, 475 P.3d 338 (2020)

 

Facts:  These two cases, decided by the Kansas Supreme Court on the same day, consider whether the same-sex romantic partner of a woman who conceives through artificial insemination and gives birth during the couple’s relationship can be recognized as a legal parent under the Kansas Parentage Act, even if the couple has not entered into a written or oral coparenting agreement.  Highly summarized, the facts in both cases show that the birth mother and the petitioner were in a romantic same-sex relationship prior to and at the time the child was conceived by artificial insemination and born to the birth mother.  Neither couple had entered into any sort of written coparenting agreement, but there was evidence in both cases, much of which was disputed at trial, that the parties understood that both the birth mother and her partner would play a parenting role in the life of the child(ren).  (One birth mother had twins.)  Within a year after the birth of the children, both relationships had floundered, and the parties had separated.  Parenting time became an increasingly contentious issue in both cases, and eventually parentage actions under the Kansas Parentage Act (KPA) were filed in both cases, asking that the petitioners be determined to be parents of the children.  (At or shortly after the parentage actions were filed, both birth mothers married other persons.)

 

The trial court denied the petition in both cases.  In M.F., the court found that the parties did not have a true meeting of the minds with respect to a parenting agreement.  In addition it stated that the particular part of the paternity statute which must be proven by the petitioner was that there was “open and notorious demonstrations of parenting” by the petitioner, and that the petitioner had not met her burden to establish that, finding that the actual day-to-day parenting of the child was done overwhelmingly by the birth mother, with the petitioner’s role being largely passive.  In W.L., the court found that even if the petitioner had met her statutory burden to show that she had notoriously acknowledged her parenthood of the children, the birth mother had rebutted that presumption by clear and convincing evidence that the petitioner had failed to meet the criteria of a psychological, de facto, or functional parent.  In addition, it found that there was evidence that the children had bonded with the birth mother’s current spouse, and that it was not in the best interests of the children to establish a parent-child relationship between the petitioner and the children.  The Court of Appeals affirmed the trial court in both cases, and the Supreme Court accepted review.

 

Analysis:  The Supreme Court reversed the Court of Appeals and district court in both cases.  It held that the same-sex romantic partner of a woman who conceives through artificial insemination and gives birth during the couple’s relationship can be recognized as a legal parent under the KPA through use of K.S.A. 23-2208(a)(4) when the birth mother has consented to shared parenting at the time of the child’s birth, even if the couple has not entered into a written or oral coparenting agreement.  It found that the trial court in both cases had not applied the correct standards and had failed to follow the statutory procedure in making its determination, and it remanded for further proceedings consistent with its opinion.

 

These are long opinions and difficult to summarize succinctly.  The Court began its analysis by noting that except for cases governed by ICWA, proceedings concerning parentage of a child in Kansas are governed by the KPA, and the KPA defines the “parent and child relationship” to mean the legal relationship existing between a child and the child’s biological or adoptive parents incident to which the law imposes or grants certain rights and obligations.  K.S.A. 23-2201; K.S.A. 23-2205.  It noted further that a parent and child relationship includes both the mother and child relationship and the father and child relationship, and that it extends to every child and parent, regardless of marital status.  K.S.A. 23-2205; 23-2206.  However, it then observed that in addition to the biological and adoptive relationships recognized under K.S.A. 23-2205, a child conceived through artificial insemination by a consenting husband and wife is considered at law in all respects the same as a naturally conceived child of the husband and wife, citing K.S.A. 23-2302, and that although a strict reading of the statute limits its applicability to a married couple and requires consent to be in writing, subsequent Kansas appellate case law indicates that lack of a written consent will not prevent the statute from being applicable.  It noted further that K.S.A. 23-2208(f), adopted in 1994 as an amendment to the KPA, provides that a donor of sperm to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the father of the child, without reference to whether the woman is married or unmarried, and that unmarried mothers had been permitted to use the procedure, citing In re K.M.H., 285 Kan. 53 (2007).  It concluded that the artificial insemination act and the KPA can work together to create complementary fictions that the husband of the woman undergoing the procedure is the actual biological father of the child, and that the sperm donor is not the actual biological father.

 

It may be noted that the Kansas statutory provisions with regard to artificial insemination in K.S.A. 23-2301—2303 are not part of the KPA, having been enacted 17 years earlier in 1968, raising the question of whether its provisions are properly  considered in determining parentage under the KPA.  The Court did not directly address this question.  However, it observed in In re K.M.H. 285 Kan. 53, 71-72 (2007), that when Kansas adopted portions of the Uniform Parentage Act (UPA) in 1985, it did not adopt any of its provisions relating to artificial insemination, and that the only part of the UPA dealing with artificial insemination adopted by Kansas was added as an amendment in 1994 as K.S.A. 23-2208(f).  It also cited Section 5 of the original UPA dealing with artificial insemination, and the provisions of subsection (a) of that section are very similar to those set forth in K.S.A. 23-2301—2303, and it seems highly likely that the legislature chose not to adopt the UPA provisions for this reason, and that it does not violate the meaning of the KPA to consider them as a part of the Act.  Justice Stegall, in his dissent in this case, simply refers to the artificial insemination provisions as part of the KPA.

 

The Court then turned its attention to the presumptions of paternity set forth in K.S.A. 23-2208, noting that because none of the presumptions in this statute involve adoption, they must concern legal recognition of a “biological” relationship, and that since in the situation where only one of two women in a same-sex partnership is fertilized through artificial insemination, any “biological” link to the woman’s partner of the same sex must be a legal fiction.  It pointed to its decision in Frazier v. Goudschall, 296 Kan. 730 (2013), where it found that K.S.A. 23-2220 provides that any interested party may bring an action to establish a mother and child relationship, with the provisions of the Act applicable to the father and child relationship being applicable to the extent practicable, and that with the exception of K.S.A. 23-2208(5) dealing with genetic testing, the presumptions of paternity in that statute allow the parental relationship for a father to be legally established without the father actually being a biological or adoptive parent.  It stated that the legislature had authorized the creation of these legal fictions, and that it had not reacted to the Frazier decision with any pertinent amendment to the KPA in the intervening seven years.  It also pointed to its decision in In re Marriage of Ross, 245 Kan. 591 (1989), where it held that when a statutory presumption of paternity has arisen under the KPA, before a blood test may be ordered to determine whether a presumed parent is actually a biological parent, the trial court must consider the best interests of the child who has developed a parental relationship with the presumed parent, since shifting parenthood based on biology alone could be detrimental to the child.

 

The Court then turned its attention to what a woman must prove in order to establish a presumption of parenthood under K.S.A. 23-2208(a)(4).  It held that it is not necessary to show that there is a formal coparenting agreement, either written or oral, between the biological mother and her same sex partner.  Nor must she show that she has actually assumed an active parental role or that she is or can be a good parent, or that it is in the best interests of the child for her to be determined to be a parent.  All that is necessary is that “she notoriously recognized her maternity, including the rights it would give her and the duties it would impose upon her.”  Whether or not she is a good parent is irrelevant to the establishment of a parental relationship under the KPA.  In other words, the courts must apply the same standard in this situation as is normally applied to a biological parent.  Finally, in accordance with the fundamental due process right of a parent to make decisions concerning the care, custody and control of the parent’s child recognized in Troxel v. Granville, 530 U.S. 57 (2000), it must be shown that the birth mother implicitly or explicitly consented at the time of the child’s birth to share parenting with the woman seeking to be determined a parent.  The Court acknowledged that to allow anyone, even someone with no relationship whatever to the child, to claim parenthood under this presumption could lead to absurd and unconstitutional results. 

 

Finally, the Court, following K.S.A. 23-2208(b) and (c), reviewed the procedure that must be followed when a woman seeks to establish parentage by using the presumption in K.S.A. 23-2208(a)(4).  The woman seeking to establish parentage bears the initial burden of proof to demonstrate the existence of the presumption, which must be established by a preponderance of the evidence.  If she succeeds, the burden shifts to the opposing party to rebut the presumption by clear and convincing evidence, by a court decree establishing paternity or maternity in someone else, or by establishing that there is a conflicting presumption of parenthood, in which case the court must determine which of the two presumptions is founded on the weightier considerations of policy and logic, including the best interests of the child.  If a presumption is rebutted, the burden shifts back to the party alleging the existing of a parent and child relationship to go forward with the evidence.  The ultimate standard of proof is preponderance of the evidence.

 

Justice Stegall dissented, quoting liberally from his dissent in In re Adoption of T.M.M.H., 307 Kan. 902, 920-38 (2018).  He assails the notion that the KPA permits a legal fiction to be used to establish “biological parentage.”  Rather, his position, which is articulated more fully in T.M.M.H., is that under Kansas law, biology and adoption are the only two ways a parent-child relationship can been established, and that the presumptions in K.S.A. 23-2208 are all presumptions of biological parentage.  He also maintains that an acknowledgement of paternity pursuant to K.S.A. 23-2204 is an acknowledgment of biological paternity, and that a person who cannot claim a biological relationship to a child cannot make an acknowledgement of parentage of that child.  He concedes that the KPA provides that a legal, irrevocable parent-child relationship may be formed between a person who acknowledges paternity of a child knowing that he is not the biological father, i.e., “lies” about it, and the child under certain circumstances.  But where lying is not possible, and it is clear from the outset that the person asserting parentage has no biological connection to the child, the acknowledgment itself is of no effect.  Similarly, one cannot invoke a presumption of parentage where a biological connection to the child is not possible.  It is beyond the scope of this case summary to analyze Justice Stegall’s dissent in detail.  But no other justice on the Court has joined him, and he ends with a note of frustration that the legislature has not taken any action to indicate that it disagrees with the conclusions of the majority.

 

About the author:  Lowell Paul is the Senior Research Attorney at Kansas Legal Services

 

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Post-Traumatic Stress Disorder and the Brain

by Shirley Davis | Jun 7, 2021   

Reprinted by permission from the Post Traumatic Stress Disorder Foundation.org

Post-traumatic stress disorder is a life-altering condition that, according to the National Center for PTSD, affects approximately 8 out of every 100 people at some point in their lives.

This article will uncover how, like complex post-traumatic stress disorder, the trauma that causes PTSD changes brain structures and how that affects the lives of those unfortunate enough to form it.

A Brief Recap of Post-Traumatic Stress Disorder

                       

Our body cascades many chemical reactions during a frightening event that set off the fight/flight/freeze response readying us to react quickly to the danger. Most people’s chemical responses will return to baseline, but others will maintain the chemical reactions long enough to cause damage.

Although most people believe PTSD to be a diagnosis that only forms in adults, but this is not true. Children also suffer incredibly traumatic events and will form the diagnosis of post-traumatic stress disorder.

According to Amen Clinics, the causes of post-traumatic stress disorder are too numerous and varied to list in this piece; however, they may include:

  • Military combat
  • Childhood abuse
  • Repeated exposure to violence
  • Being held at gunpoint
  • Natural disasters
  • Mass shootings
  • Automobile accidents
  • Rape or other assault
  • Witnessing someone getting hurt or killed
  • Witnessing the death of a loved one
  • Kidnapping
  • Pandemic

You may have noticed that pandemic made the list. With the onslaught of COVID-19, it is predicted the number of people affected by complex post-traumatic stress disorder and post-traumatic stress disorder will increase dramatically.

How Common Is Post-Traumatic Stress Disorder?

Experiencing trauma is not rare as approximately 6 of every 10 men (60%), and 5 of every 10 women (50%) will experience at least one traumatic event in their lifetime. Men are more likely to experience trauma in the form of accidents, physical assault, combat, or witness death or injury. Women are more likely to experience sexual assault and child sexual abuse.

Some people have inherited a gene from a parent who had PTSD, making them more susceptible to forming it themselves.

However, post-traumatic stress disorder can strike anyone at any time regardless of age or other demographics. No one is immune from PTSD, and as the world changes, it becomes more likely for one to experience a traumatic event that causes it.

The Brain Changes Caused by Trauma

                               

While alterations in behavior are the hallmarks of PTSD, the causes for these changes involve changes to significant brain structures. One study using functional magnetic resonance imaging (fMRI) showed that brain structure and function might underlie the symptoms of post-traumatic stress disorder.

The brain areas that seem to have been consistently implicated in PTSD have included the hippocampus (a region responsible for memory consolidation and retrieval) and the prefrontal cortex (the area responsible for reasoning and thought). Also involved in the changes seen in those living with PTSD is the amygdala (the fight/flight/freeze response center) (Bremner, 1999).

Several studies have shown that PTSD is associated with a reduction in the hippocampus volume during fMRI and MRI examinations. This volume change can mean that the person experiencing post-traumatic stress disorder will experience memory disturbances and difficulty learning.

The amygdala volume in people with PTSD decreased, leaving the person living with PTSD easily triggered by events their brain perceives as dangerous, whether this perception is correct or not. As a result, the person lives in a state of constant alertness and fear and can be easily triggered into a flashback of the event that caused their post-traumatic stress disorder (Morey et al., 2012).

Memory and Post-Traumatic Stress Disorder

                     

One would like to believe that memory is forever, that everything we have experienced is stored somewhere in our marvellous brains. And while this belief is somewhat true, it is not for those who have experienced trauma.

During a traumatic event, the victim focuses only on the event, not on the peripheral details such as when, where, or why the traumatic event is taking place. In fact, memories of the event may completely disappear from conscious retrieval by the victim until weeks or even decades later when they are triggered back to life.

The reason behind this memory conundrum is because memory is processed in three stages:

  • Encoding- adding and embedding information to memory
  • Storage- retaining and encoding information into memory
  • Retrieval- accessing and recalling formation from memory

When one experiences a traumatic event, it typically becomes encoded into your memory, where it is stored for later retrieval. As a result, some people only remember that the event took place, and others experience flashbacks, the involuntary, recurring thoughts, and images of the traumatic event.

The other details, such as location, date, and other information you would think would never be forgotten, are not stored in the memory and aren’t available for immediate recall.

Epigenetics and Post-Traumatic Stress Disorder

                      

Epigenetics is the study of inherited genetic changes that involve changes to the DNA by common mutations and the effects of traumatic stress on our parents. Yes, you can inherit the propensity to form post-traumatic stress disorder from your parents.

PTSD is a stress-related disorder; it is entirely possible that complex interactions between the traumatic events our parents have experienced have changed the very core of their being, DNA, and thus altered the course for their children (Zannas et al., 2015).

Because of obvious ethical concerns (one does not want to induce PTSD in a human), animal studies are conducted to further the research of epigenetics and post-traumatic stress disorder.

So, the idea of epigenetics playing a role in the formation of PTSD in the children of those who formed PTSD themselves is supported by further studies examining fear conditioning in rodents.

Future research offers an exciting understanding of epigenetics and how our genetic makeup is affected by trauma and its partner PTSD.

Ending Our Time Together

Traumatic events cause many chemical reactions and initiate the fight/flight/freeze response, but for some, these chemicals never return to baseline, causing damage to some regions of the brain.

60% of men and 50% of women will experience one or more traumatic events in their lifetime. These statistics mean that more research must happen to increase our knowledge and thus treatments for PTSD.

The brain areas affected by PTSD control memory, reasoning, and thought, causing the victim to experience difficulties remembering events, thinking, and learning new information.

Epigenetics, a new kid on the block of neuro-research about PTSD, has found that a person’s genes are changed by trauma and that these changes can be passed to their progeny.

The next stage of research and learning about post-traumatic stress disorder will involve those who formed PTSD due to the COVID-19 pandemic as people emerge from isolation and face a new world.

“Trauma is personal. It does not disappear if it is not validated. When it is ignored or invalidated, the silent screams continue internally heard only by the one held captive. When someone enters the pain and hears the screams, healing can begin.” ~ Danielle Bernock

“Even in times of trauma, we try to maintain a sense of normality until we no longer can. That, my friends, is called surviving. Not healing. We never become whole again … we are survivors. If you are here today… you are a survivor. But those of us who have made it thru hell and are still standing? We bare a different name: warriors.” ~ Lori Goodwin

References

Bremner JD. Alterations in brain structure and function associated with post-traumatic stress disorder. Semin Clin Neuropsychiatry. 1999 Oct;4(4):249-55. DOI: 10.153/SCNP00400249. PMID: 10553030.

Epigenetics. Wikipedia. Retrieved from: https://en.wikipedia.org/wiki/Epigenetics

Morey, R. A., Gold, A. L., LaBar, K. S., Beall, S. K., Brown, V. M., Haswell, C. C., … & McCarthy, G. (2012). Amygdala volume changes in post-traumatic stress disorder in a large case-controlled veterans group. Archives of general psychiatry69(11), 1169-1178.

Zannas, A. S., Provençal, N., & Binder, E. B. (2015). Epigenetics of post-traumatic stress disorder: current evidence, challenges, and future directions. Biological psychiatry78(5), 327-335.

 

About the author: Shirley Davis is a freelance writer with over 40-years experience writing short stories and poetry. Over the last two years she has been writing articles for other people’s websites. She loves science and reads several research papers per week to satisfy her curiosity. Shirley has earned an Associate Degree in Psychology, is a published author of three books and is currently working on a fourth.

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