Brandy Smith Funderburg v. Harrisonburg Rockingham County Department of Social Services

Is a preponderance of evidence standard sufficient for the State to confine children indefinitely? Children who have not even committed a crime are subject to state confinement, deprived of basic liberties, such as freedom of association, freedom of movement, freedom of the pursuit of happiness. Standards of evidence in juvenile dependency cases vary by state, with some states relying on a clear and convincing standard, yet others using a mere preponderance of evidence standard, including Virginia. The Petitioner requests review of the Constitutional due process violations incurred by using such a low standard. Does indeterminacy in child welfare law violate Constitutional due process protections, and do overly-vague statutory definitions violate the vagueness and over-breadth doctrines of the Constitution? Lack of statutory definitions in abuse/neglect law leads to subjective interpretations of the law. Virginia recently ranked 49th in the country for children placed in foster care to achieve reunification with their family. Even with the passage of the Family First Prevention Services Act, children are routinely denied kinship care based on erroneous determinations. Due to indeterminacy in child welfare law, combined with the low standard of evidence, the process becomes rife with bias, corruption, and injustice. The Petitioner requests this matter to be reviewed by the Justices of this Court on behalf of the hundreds of thousands of children that are removed from their homes annually, and their family members who so desperately “jump through hoops” of “services” in order to achieve reunification, only to be denied based on factors that are neither clear nor properly defined.