MEMO TO JUDGE KIP LEONARD: "SOCIAL DECISIONS" ARE NONE OF YOUR BUSINESS
After nearly two years of needless foster care, Noah Kirkman probably will be going home. Thanks largely to public pressure, an Oregon judge has relented and ordered Noah returned to his native Canada to live, at least initially, with his grandparents.
But it won't happen immediately and there is no deadline. So there is plenty of time for mischief.
While it's not likely, the judge could change his mind. The Oregon Department of Human Services, which dithered for nearly two years, could stall the process further. Once back home, Noah's fate will be up to child welfare agencies in Canada, which generally are no better than their American counterparts. And while a kinship placement beats stranger care, there is no reason Noah shouldn't have been returned directly to his mother, Lisa Kirkman.
So it's a victory, but a small one and a fragile one. And it never can undo the damage done to Noah by Oregon's DHS, and a tendency among some in Oregon toward a smug sense of superiority over pretty much anyone who isn't from Oregon, a smugness nurtured by the state's largest newspaper.
On the other hand, it illustrates the value of the one area in which Oregon is the most progressive state in America: opening court hearings in child welfare cases.
The basics of how Noah Kirkman wound up in foster care are in this earlier post to the Blog, so I won't repeat them here.
A JUDGE INFLICTS HIS BIASES
But the fundamental failure in this case and so many others was aptly, if inadvertently, summed up by the judge who prolonged it for so long, Lane County Juvenile Court Judge Kip Leonard:
"I am confident in my legal decision that Noah return to Canada," said Leonard, according to the Eugene Register-Guard. "I am not as confident in my social decision."
It is not a judge's job to make "social decisions" and it aptly sums up the arrogance of the child welfare system that Judge Leonard seems to feel otherwise.
It is precisely the penchant to make "social decisions" as in, "never mind what the law says, I think this child would be better off with people who are more like me" that wreaks havoc in the lives of tens of thousands of children caught up in the system. These are children trapped in foster care precisely because their parents are not like "us" – they are overwhelmingly poor and disproportionately minority. And that's precisely why the U.S Supreme Court has made clear that child welfare agencies and judges are not free to engage in "comparison shopping" between foster parents and birth parents. They cannot reach the issue of "best interests" until determining that the birth parent is unfit.
Though the instruction is widely ignored, the law effectively instructs judges and even child welfare agencies to stay the hell out of "social decisions." The failure to heed this instruction helps explain why Oregon takes away children at a rate 70 percent above the national average.
Contrary to what the Oregonian claimed in its commentary-disguised-as-a-news-story about the case today, it is not the job of child welfare agencies or judges to "try to find the best placement for the child." That is a something they don't get to do until and unless the judge finds that a birth parent is unfit. Until then, their job is supposed to be limited to deciding if it is safe for the child to live with her or his birth parents. The question is whether the parent can provide a minimum standard of care, not some judge's arbitrary notion of what is "best." (In this case even that was going too far. In this case, the job of DHS and the judge was to turn the case over to Canadian authorities so they could make that determination.)
That's not because children don't deserve more than the minimum – rather, it's because when we let child welfare agencies and judges decide what is "best" we open a Pandora's Box of racial, class and geographic biases. And that is contrary to the best interests of all children. (The way we help children get more than the minimum is to provide the help their own parents need to give it to them.)
MY COUNTRY CAN BEAT UP YOUR COUNTRY
A pure "best interests" test almost always becomes a "better off" test. The foster family is better off financially so it is assumed that the child will be better off with them. The white, middle-class family with the tidy home is so much more like what people in the system themselves usually know best, that they almost never will view a child as "better off" with poor Black birth parents. And, of course, my country is always better than your country.
Recall the case of nine-year-old Sean Goldman, the boy from New Jersey abducted by his Brazilian mother. He lived in Brazil for five years while his American father fought to get him back. The Brazilian courts were not about to cede their obligation to decide what was best for this child of a Brazilian mother to authorities in the United States.
Public opinion overwhelmingly was with the father – in America, anyway. No one in the United States even thought to apply a pure "best interests" test, even though Sean had been living in Brazil with little contact with his father since he was four years old, and probably didn't want to go back to his father – which is exactly what his Brazilian relatives claimed.
It isn't even just other nations. After Florida botched a case that also involved Wisconsin, a Wisconsin columnist wrote an amazingly smug column about how people in Wisconsin are simply so much more generous and caring and it could never possibly happen there. (For the record, Florida probably has a better child welfare system overall, and Miami does a far better job than Milwaukee.)
It's well worth keeping the Goldman case in mind when considering how the Oregonian covered Friday's hearing – the first time it deigned to cover the story at all.
In addition to wrongly describing the proper standard to apply as the child welfare agency's and the judge's opinion of what is "best," the Oregonian led its story as follows:
An Oregon judge Friday ordered a 12-year-old boy sent back to Canada, his home country, even though the boy doesn't want to go. … On Friday, the boy did not appear in court, but he did spend a half-hour talking privately with Judge Kip Leonard ahead of the hearing. Leonard said they talked about catching mice and snakes, middle school and family. "He told me where he wants to be," Leonard said. "He told me he'd like to stay in Oregon and have his mother and grandparents come to visit."
Apparently, Noah didn't know that his mother isn't allowed to cross the border because of her "criminal record" – growing marijuana for a medical marijuana dispensary.
In addition, Noah's contact with his mother has been limited to closely-monitored fifteen-minute phone calls every two weeks. His mother says the calls are censored. She says she was not allowed to tell Noah she was fighting to get him back or even to tell him how much she missed him. [UPDATE, MAY 30: Lisa Kirkman told the Canadian Press the calls sometimes didn't happen for three to six weeks - because DHS would allow them only during their office hours, when it was more convenient for DHS to have a censor on the line. Those hours often conflicted with Lisa's work and Noah's school. Lisa couldn't even talk to Noah on his birthday, because it fell on a Sunday this year.]
Now, add to that being bounced from foster home to foster home before finally landing in the one he likes, and one can see how Noah Kirkman might feel abandoned by his mother and resentful of her.
But let's assume none of that was involved in Noah's feelings. (We're also assuming that what third parties have said on Noah's behalf is accurate. UPDATE: MAY 30: Noah's grandparents say he is, in fact, excited to be going home. In any event, there is no excuse for the Oregonian portraying Noah's alleged desire to remain in his foster home as known fact, without so much as attribution.)
But again, let's assume he doesn't want to go home. It's still not his decision. No more than the seventh grader who doesn't want to leave his middle-school crush has the right to stay behind if his parents move to another city.
Sean Goldman almost certainly didn't want to return to New Jersey after living in Brazil from age 4 to age 9, and having almost no contact with his father for much of that time.
If I kidnap a child at birth, flee to Canada, take really good care of him, and return five years later, that child definitely won't want to return to his parents. It's hard to imagine a newspaper siding with the kidnapper. But siding with the kidnapper is the logical outcome when "social decisions" are allowed to replace legal ones, and an arbitrary definition of "best interests of the child" is allowed to supplant the best interests of children to live in a just society.
ONE STEP UP FROM VOODOO
The Oregonian story goes on to dredge up everything it can find to cast Noah's mother in the worst possible light. There are lots of weasel words like "may have been" and "questions about" and vague attribution like "testimony … indicated…" There's lots of dependence on "psychological assessments" which, when it comes to reliability, are about one step up from voodoo. (See the story on Page 13 of this issue of the New York City publication Child Welfare Watch for an excellent discussion of how they really work. Or check out the Michigan Race Equity Review, which documents cut-and-paste "psych evals," in which evaluators take boilerplate they wrote about one case and apply it to another.)
Nevertheless, it is perfectly reasonable to include this material in a news story, though there should have been much clearer attribution. What is unreasonable is the fact that nowhere in the story does Noah's mother, or the grandparents, or her lawyers get a chance to respond. And there is no discussion of the consequences of moving Noah from foster home to foster home.
The Oregonian also gives DHS a free ride in defending why the case took so long. According to the Oregonian:
Gloria Anderson, international affairs manager for Oregon's child welfare system, said the state worked closely with Canadian officials from Day One to find a way to get the boy back to his home country.
And the reason about 700 days passed since "Day One" before it might happen is…? The Oregonian doesn't say.
In fact, it is likely that DHS dithered all this time precisely because of the Oregonian, which whipped the state into a jingoistic frenzy after DHS sent a child to relatives in Mexico who killed her. DHS' actions suggest it's been terrified about international cases ever since.
The Oregonian continues:
Because the boy was in Oregon and under the state's legal jurisdiction, simply putting him on a plane and delivering him to Canadian child welfare officials was not an option, Anderson said. "We have an obligation, a legal and ethical obligation to ensure his safety."
Translation: We in Oregon know more about child welfare and care more about safety than those dumb Canadians. (Or, as they might put it in Brazil: We Brazilians know more about child welfare and what's best for Sean Goldman than those dumb Americans.)
And the evidence for this would be? In fact, delivering Noah to Canadian child welfare officials does every bit as much, if not more, to "ensure his safety" as leaving him to the tender mercies of the Oregon foster care system.
BOLSTERING THE CASE FOR OPEN JUSTICE
This case also is more evidence of the urgent need to end the secrecy that surrounds child welfare.
Nothing moved on this case until Lisa Kirkman went public. Nothing happened until The Register-Guard wrote a detailed, and scrupulously even-handed, story about the case. Then it picked up steam in Canadian media and ultimately in Oregon – except for the Oregonian. It looks like only then did DHS decide that the political winds had shifted and sending Noah home would do them less political damage than keeping him indefinitely in Oregon.
But those news accounts wouldn't have been enough, and might not even have been possible, if not for the fact that in Oregon, reporters who might otherwise be too skeptical to even consider Lisa Kirkman's pleas, can go into court to see for themselves.
Not only is Oregon one of only about 17 states with open court hearings, Oregon may be the only state where judges can't close them on a case-by-case basis.
All of which infuriated Judge Leonard. According to a brief item that appeared on the Register Guard website last night, but does not appear to be there today, the judge attacked the media for even covering the case – arguing, as bad judges and bad child welfare administrators always do, that it would be harmful to the child. In fact, it only harmed the reputation of Judge Leonard. And with the press looking on, he no longer could substitute his personal whims and prejudices – his "social decisions" - for the law.
There's one other piece of good news in all this: Judge Leonard is retiring.