Wednesday, February 10, 2010

Using lawsuits to prevent foster care: CR’s big epiphany - all these years, they’ve gotten the law all wrong!

Back in 2002, I wrote an op ed column for the Milwaukee Journal-Sentinel criticizing a settlement of one of the McLawsuits brought by the group that so arrogantly calls itself Children's Rights. The problem was the problem found in almost every settlement CR reaches on its own: The settlement did nothing to keep children out of foster care in the first place. The settlement ignored family preservation even though the target of the suit, Milwaukee County, Wisconsin, had a far higher rate of removal than many cities. Needless to say it still does.

A week later, Eric Thompson, senior litigation counsel for CR, wrote a response. He offered what had become CR's party line: it's not that we don't care about keeping kids out of foster care, the law simply won't let us fight for those children. Wrote Thompson:

Unfortunately, there is no enforceable law on this issue. While the courts can be a useful tool for protecting children's rights, they cannot act in the absence of a recognizable legal claim.

There is no legal basis to assert claims for children not yet in foster care. It is unfair to fault plaintiffs' counsel for not imposing settlement terms on the state on behalf of children who have no legal claims in the case.

And that's how it's been year after year. CR's settlement in Michigan for example actually has led to cuts in prevention and family preservation – in order to fund a foster-care hiring binge designed to comply with the settlement.

Through it all, CR has never explained how settlements to lawsuits brought by other organizations, such as the settlements in Alabama and Illinois, have managed to include prevention and family preservation. Even CR's own first settlement in New Jersey, which was heavily influenced by the Annie E. Casey Foundation, had powerful mandates for more prevention and family preservation. (CR apparently grew disenchanted however, effectively hollowing out that settlement a few years later.)

But now, suddenly, CR seems to have discovered some new law.

It seems that in Connecticut, which also is operating under a consent decree with CR, there is one prevention program CR really, really likes. It's not hard to see why. It has nothing to do with parents accused of abuse or neglect. Rather, it involves parents who otherwise would have to voluntarily surrender their children to foster care due to the children's behavior problems – because the parents' insurance doesn't cover the expensive mental health care they need.


This is an enormously important issue affecting thousands of children needlessly torn from their families across the country. It was at the core of the safe-haven debacle in Nebraska. Of course CR is right to try to save this program in Connecticut. But why so much interest in this kind of prevention and family preservation from a group that is indifferent or even hostile to almost every other kind? Maybe because these cases involve some of the very few times that the long arm of child protective services reaches into the middle class – in other words, families with whom Marcia Lowry who runs CR, and the other upper middle class lawyers on her staff actually can identify.

The identification is so strong, that apparently CR has just discovered that, for all these years, they got the law all wrong.

Because CR was shocked – shocked! – when the Connecticut Department of Children and Families went to court and made the same argument CR itself has been making all these years. Check out CR's own press release, which says:

The state [of Connecticut] has now taken the position that children at risk of entering foster care are not protected by the class action settlement that created the Voluntary Services Programs, because the kids receiving these services have not been reported as victims of child abuse or neglect.

Their position raises a fairly obvious question: What good are preventive services if the only children who can access them have already been harmed? [Emphasis in original.]

Here's an even more obvious question CR: Why didn't you think of this when you settled in Milwaukee and Michigan and all those other places?

Isn't it time someone asked CR why they're so much more willing to fight for this in Connecticut than in Milwaukee and Michigan – or Oklahoma and Rhode Island where their pending lawsuits aren't any better?

But wait, there's more. According to the press release:

"Families who are willing to proactively ask for assistance to get their kids the help they need should not be punished simply because they haven't been accused of abusing or neglecting their children," says Ira Lustbader, associate director of Children's Rights. "Programs that prevent abuse, neglect, or abandonment before they occur are exactly what state systems should be protecting."

Then aren't those the programs CR should be fighting to protect, even when they help almost exclusively poor people? Isn't it time someone asked CR why they're allowing the Michigan Department of Human Services to cut these very programs to help fund CR's settlement in Michigan?