Thursday, March 24, 2011

Foster care in New York City: The grandstanding D.A. vs. the children: A tragedy in three acts

UPDATE, 10:30PM: See also this New York Times story, for context no one else has provided yet.

Last September, I wrote about how the Brooklyn, New York, District Attorney, Charles Hynes, had decided to score some political points, and get lots of media attention by launching a first-of-its-kind criminal investigation of the Administration for Children’s Services, in connection with the death of Marchella Brett-Pierce, a child “known to the system.”

I said that almost certainly would set off another surge in needless removals of children -  the last thing vulnerable children in New York City needed.

New York City had been a national leader in child welfare reform, until ACS Commissioner John Mattingly botched the response to the death of Nixzmary Brown just over five years ago.  His response consisted of a series of so-called “reforms,” which sent the same message to the frontlines: Take the child and run.  And they did.

Removals of children escalated sharply – only in the past year or so were there signs the surge in removals was starting to ease.  But all the standard indicators of child safety got worse.  Details are in our report on New York City child welfare.  And no wonder.  Though there was plenty of new hiring after Nixzmary died, there also were plenty of new cases, and more work in dealing with existing cases.  So it got harder to find children in real danger.

New York’s rate of removal is not nearly as high as Los Angeles or Philadelphia, and the surge in removals following the death of Nixzmary Brown has not been as bad as the one which followed the death of Elisa Izquierdo in 1995.  But the rate of removal in New York is significantly higher than, for example, the rate in metropolitan Chicago, where independent monitors say that, as foster care entries have declined, child safety has improved.

Then, last Septmeber, came Act One of “Look at me!  Look at me!  I’m Charles Hynes and I’m cracking down on child abuse!”

Not surprisingly, during that month, ACS workers removed at least 412 children from their homes, a 13 percent increase over the same month in 2008 and 2009.  (ACS lists entries in two different places in its monthly reports with two different figures, this is an apples-to-apples comparison using the lower figure in each case.)

Fortunately, after that everyone calmed down. 

But now, things are going to get a whole lot worse.  Yesterday, Hynes raised the curtain on Act Two.  He got a grand jury to indict the caseworker and the supervisor involved in the case on charges including criminally negligent homicide – apparently the first time this has happened in New York City. 


There may be cause to charge the caseworker with something – he is accused of falsifying records to hide a failure to visit the home – but not criminally negligent homicide.  And so far, news accounts suggest no reason to charge the supervisor. 

ACS put out a statement expressing fear that the indictments will backfire, since they might discourage good people from becoming caseworkers.  The indictments are going to backfire alright – but for a very different reason.

Caseworkers all over the country already know that they’ll never get in trouble within a child welfare agency for taking away too many children.  In fact, in the nearly 35 years I’ve been following child welfare, I’ve never seen a caseworker fired, demoted, suspended, or slapped on the wrist for taking away too many children.  Which means that, contrary to what one often hears from caseworkers, when it comes to taking away children they are not, in fact “damned if they do and damned if they don’t,” they’re only damned if they don’t.

Now, in New York City, they know that if they leave any child in a home and something goes wrong, they could be thrown in jail as well.

So now the incentives skew even further toward take-the-child-and-run, which not only does enormous harm to the children needlessly taken, it means the system will be further overloaded and there will be even less time to find the next child in real danger.

And it’s going to get still worse.

Hynes offered a preview of Act Three: The grandstanding D.A. is continuing to use the grand jury to conduct an investigation of  “evidence of alleged systemic failures” at ACS.  According to The New York Times:

The grand jury will seek to determine whether the agency had followed through on its plan for reforms after the 2006 death of Nixzmary Brown, …

The real problem is the opposite: ACS did follow through on its so-called reforms – but all of the reforms involved encouraging workers to take away more children.  In that respect they worked just fine.  But, as noted above, every indicator of child safety worsened.

In contrast, as noted previously on this Blog, John Mattingly turned his back on real reform, becoming one of the most regressive forces in American child welfare.  Matingly’s record includes reneging on a pledge to use "differential response" (a national innovation he's long opposed) to deal with some "educational neglect" cases, opposing state legislation to encourage workers to be slightly more flexible about rushing to seek termination of parental rights for some mothers who are in jail or drug treatment, and even opposing legislation to place more children permanently with relatives through subsidized guardianship. Fortunately, both bills passed despite Mattingly's objections.


Still another possible indicator of ACS’ failure came last week in the case of the horrifying, near fatal beating of a 17-month-old foster child, Kymell Oram.  The foster mother’s boyfriend has been charged.

The New York Times quotes a friend of the mother as saying she was in the process of adopting the child.  And according to the Daily News, someone from ACS came to the foster mother’s apartment just last month and saw nothing wrong. 

There are a number of possible reasons for this:

●Perhaps there was nothing to see.  Perhaps everything was fine and the foster mother and her boyfriend have nothing to do with the beating, or someone suddenly and unpredictably exploded.  Perhaps even the most diligent ACS worker had no reason to suspect anything.

●Or perhaps it had something to do with the fact that, when it comes to dangers in foster homes, caseworkers are prone to see no evil, hear no evil, speak no evil and write no evil in the case file since, of course, it is the child welfare system that put the child in the home in the first place.  How else to explain the fact that academic studies repeatedly find rates of abuse in foster care that are up to 30 times higher – or more – than the ridiculously low rates reported in official figures?

●Here again, another factor may be the surge in entries into foster care as a result of those ACS “reforms.” The more children you take away, the greater the pressure to lower standards for foster homes. 

●There may be still another factor as well; what in this case might be called “near-fatal neatness.”

As I noted on this blog four years ago, there is no field I know of where the phrase “cleanliness is next to Godliness” is taken more literally than child welfare – and no field I know where the consequences can be more harmful. Over and over again, in fatality reviews and news stories, caseworkers say something like “we never suspected anything because the home was so neat and clean” as though there is some direct correlation between cleanliness and love. In contrast, children can be taken from loving homes because an overwhelmed parent fell way, way behind on the house cleaning.

So in his report reviewing child abuse fatalities in 2005, the first director of New Jersey’s now-defunct Office of Child Advocate (and later commissioner of the state child welfare agency) Kevin Ryan issued the following recommendation:

In two cases here, and as also evidenced in the OCA’s prior reports, the caseworkers noted in the file that the home was neat and clean. Until someone demonstrates a correlation between cleanliness and child safety, [the state child welfare agency] should instruct employees that this factor is, at best, hardly relevant unless the filth is severe enough to cause a real and immediate risk to the child. This both will reduce needless removals from dirty homes, and encourage workers not to write off the potential for risk in homes that happen to be spotless. [Emphasis added.]

Perhaps the word has not crossed the Hudson.  The Daily News quotes a “police source” as saying:

"The apartment was in okay shape and there was food in the refrigerator. Apparently that's all they look at."


One might hope that, when it comes to bad messages sent to caseworkers, the fact that one tragedy in the home of birth parents and one in the home of foster parents are in the news at the same time might cancel each other out – that is, the temptation to take away more children and throw them into foster care might be tempered by the tragedy in foster care itself.

It doesn’t work that way.  As I wrote five years ago, I believe there are two reasons for this:

Reason #1:  When the birth parents did it, it’s easy to find a scapegoat.  Typically one worker, or perhaps one worker and one supervisor, made the decision to leave the child in his or her own home.  That means one or two people who can be fired, demoted, suspended, and/or raked over the coals in news accounts – or charged with criminally negligent homicide.  Workers know this.  That’s why when a case hits the paper, they become terrified that the next case will be one of theirs and they rush to take away more children.

In contrast, when the child dies in foster care the blame is more diffuse.  The worker who removed the child often is not the one who chose the foster home. And even if she did, someone else had the responsibility to license the foster parents, so the worker who placed the children can’t be blamed.  The licensing may have taken place years before, so that worker can’t be blamed either.  And, for that matter, the foster parents who kill the child might be the second or third or fourth placement.

So when a child dies in foster care the response of caseworkers is the same: If I leave a child in his own home and something goes wrong, I’m the scapegoat; if another child dies in foster care, no one’s going to blame me.

The dynamic is compounded by –

Reason #2: the profound double standard in media coverage of “lessons learned.”  When the birth parent is the culprit there is an immediate rush to blame “family preservation.”  There is a ready supply of spokespeople, often from agencies that make their living off foster care, anxious to come forward and say, “See: This case proves that the state or county is doing too much to keep families together.”  When the child dies in foster care it’s written off as an aberration, something that can be fixed with more frequent caseworker visits to foster homes or tightening of licensing standards and background checks. 

So rather than counterbalancing each other, these two cases actually reinforce the tendency of caseworkers to rush to tear children from their homes. 


And here’s what makes it even scarier:

In New York City, a child “known to the system” dies an average of once every 9.5 days.  It’s only every few years or so that media pay attention.  Well, now they’re paying attention.  So when the next one happens, it officially becomes three tragic cases.  And that makes it “a series” or “a spate” of tragedies that “raise questions” about ACS.

It was exactly that kind of misreporting that started this cycle in 2006 in the first place. (Recall the New York Times reporter who declared “it was a series – but not statistically.”)

So there may be even more than three acts to this tragedy – unless someone rushes in real soon and demands that Charles Hynes, and the rest of the playwrights, do a rewrite.