Law students propose legislation to address foster care issues
By Jenny Whalen
U-M Law
Sometimes it is mere sibling curiosity: How was school? Do you have any new friends? What would you like for your birthday? Other days, the motivation of an older brother’s interest is more profound: Do they treat you well? Are you happy? Safe?
Regardless of the intent, questions of this sort have rarely been answered for Justin McElwee. Placed in foster care at age 13, the now 20-year-old McElwee has become little more than a stranger to many of his six siblings — his relationship with them the victim of an overworked and underfunded child welfare system.
“When you’re separated from your siblings, you go through an emotional process,” says McElwee, who moved through half a dozen foster care facilities as a teen. “You begin by grieving, and eventually you come to the point of reconciling with the situation. That is where I’m at now. I’ve grown used to not seeing my siblings, and I don’t have those relationships.”
The separation of siblings is one of many all-too-common foster care themes that students in the Law School’s Legislation Clinic set out to rewrite last fall. Led by Professor Don Duquette, the one-year clinic offered students an opportunity to research, draft, and lobby on behalf of a series of proposals intended to improve child welfare law in Michigan.
“I aspired to have students find projects that spoke to them, so that they could go from identifying the issue and researching it in significant depth, to drafting the statutory language needed to implement the policy and shopping it to stakeholders,” says Duquette, also the founder of the Child Advocacy Law Clinic. “I’m pleased with how the arc worked out.”
Organized in teams of two and three, students pursued eight proposals during the course of the year, four of which were presented to lawmakers and other stakeholders during an April visit to the state Capitol. Three of those proposals — addressing parental visitation, reinstatement of parental rights, and sibling placement and visitation (divided into two bills) — are now on track to becoming Michigan law, after Michigan Senator Rick Jones introduced them to the state Legislature in June.
Jones — a Republican from west Michigan — has witnessed firsthand the challenges facing Michigan’s child welfare system, specifically in regard to sibling placement and visitation in foster care.
“There was a case where the husband killed his wife, then himself, leaving behind four children,” Jones recalls. “The state called my daughter and said, ‘Could you take two?’ She said, ‘Why would I want to separate brothers and sisters? I’ll put up bunk beds and we’ll take all of them.’ My daughter instinctively knew the importance of keeping siblings together if at all possible.”
While the Michigan Department of Human Services’s (DHS) current foster care policy outlines basic requirements for sibling placement and visitation, there is no statute requiring that child welfare agencies consider placing siblings together and no law requiring that courts consider sibling visitation or contact.
“One of a foster child’s greatest allies can be a sibling, but our research showed that some 75 percent of foster children are separated when placed into foster care,” says Andrew Bronstein, who worked on the sibling visitation proposal as a 3L. “We wrote this proposal to increase the likelihood that siblings would be placed together in foster care when it is appropriate and, when that’s not possible, that they should have the opportunity to visit one another when it is in the best interest of both children.”
Although the four bills introduced propose only modest changes to existing Michigan law, clinic students and stakeholders say a statute would ensure much-needed consistency across foster care and adoption practices and agencies in the state.
“If these bills pass into law, questions of sibling placement, parental visitation, and reinstatement of parental rights will be kept at the forefront,” Duquette says. “Judges and case workers will have to consider these questions. They won’t be swept away in a moment of emergency.”
It is this potential for positive change that made the experience all the more rewarding for clinic student Jillian Rothman.
“The journey has been incredible,” Rothman says. “In this case, it was the opportunity to witness how a problem becomes a fix — becomes a bill — becomes a law. We went from talking about the big-picture problems to sitting down with our groups and figuring out how to fix them with the words of law. We’ve created this momentum now, and I’m excited to watch it play out.”
McElwee also will keep a close eye on the progress of the bills. Although their passage will have little effect on him, their introduction has given the international relations major hope for his own policy work, which he intends to pursue following college graduation.
“There are a number of reasons why children end up in child welfare, but the majority of foster youth come from lower-income homes,” McElwee says. “What I want to do is work to restructure monetary policy in child welfare to ensure that there is an even playing field for everyone — not just in America, but all over the world.”
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