Tuesday, May 24, 2016

Indian Child Welfare Act: The real tragedy is that it’s not enforced

Before ICWA: The Carlisle Indian Industrial School, 1900
This is an expanded version of a column that appeared originally in the Chronicle of Social Change

Casey Jo Caswell of Lansing, Mich. made a terrible mistake. Homeless and jobless, she turned to Michigan’s child welfare agency for help raising her son, Ricky. But the agency offered no help with housing, no help with a job, and no help with education.  They told her to surrender the child to “temporary” foster care, and then rushed to terminate her parental rights.

Ricky was placed with middle-class foster parents in a nice, big home, first as a foster child, then
it became his adoptive home.

Once, during a counseling session, the Detroit News reported, the boy was playing with two plastic horses, when he said: “This little horse is going to die if he can’t be with his mother.” That proved prophetic.  Ricky Holland’s white adoptive parents murdered him. They stuffed his body in a trash bag and left it by the side of a road.

Yet in all the years since, no one has suggested that, because of this horror story, the so-called Adoption and Safe Families Act (ASFA), the law that spurred the rush to place Ricky in the home where he was adopted to death, should be repealed or curbed. That’s understandable. There’s an excellent case for curbing ASFA, but it shouldn’t be built on horror stories that unfairly stigmatize entire groups.

Yet Marie Cohen offers a similar horror story involving a Native American home (recycled from the far right Goldwater Institute ) as the only evidence in support of her claim in a column for the Chronicle of Social Change, that the Indian Child Welfare Act (ICWA) should be curbed – or maybe never should have been passed at all; she’s not clear about that. The Goldwater Institute has filed a class-action suit against ICWA.

Cohen dismisses in a single sentence the horrors inflicted on Native American children that led to passage of ICWA. In fact, from the 19th Century through the 1960s, American child welfare agencies tried to effectively eradicate Indian culture and, indeed, Indian tribes, through the expedient of taking away children. First, they were warehoused in hideous orphanages. Later, there was a campaign of mass adoptions. Melissa Harris Perry called the orphanages an “explicit cultural extermination mission.” The Lakota People’s Law Project is calling for a Truth and Reconciliation Commission.

By the mid-20th Century people stopped actually saying “kill the Indian, save the child” but it took ICWA to change practice – though it hasn’t changed nearly enough.

Opponents of ICWA respond exactly as the Supreme Court majority dealt with the Voting Rights Act: Well, yes, racism used to be a problem, but not anymore!

There are two problems with this:

First, if you curb a bad practice by passing a law and then you eviscerate the law, it’s not hard to figure out what will happen next – witness the wave of voter suppression laws that followed the Supreme Court voting rights decision.

Second, contrary to what John Roberts and Marie Cohen seem to think, racism isn’t dead.

In 2003, Dewey Sloan, chief juvenile prosecutor in an Iowa county where Native American children were in foster care at a rate seven times higher than the rate for white children told the Des Moines Register, "I don't think there's anything in any of these cases that points to something positive about Indian culture, except the culture of drugs and the culture of poverty and the culture of abuse."

Or consider what happens to Native American children in South Dakota. That state tears apart families at a rate 80 percent above the national average.  And while Native Americans are 15 percent of the population, they are more than half of all foster children. The horrors inflicted on Native American children by the state were documented in a heart-rending series by NPR – in 2011.

NPR’s findings were confirmed by a federal judge last November. And, in another lawsuit, the federal government is charging the South Dakota Department of Social Services with discriminating against Native American job applicants.

So yes, there’s a problem with ICWA alright – the problem is it’s not being enforced.

And the right-wing propaganda about ICWA has been remarkably effective – even to the point of getting some on the left to help do their dirty work.

In Santa Clarita, California, Rusty and Summer Page took in Lexi, a child who is part Native American, knowing at the outset that the plan was to return her to her own father or, if that wasn’t possible, to extended family. But when the child’s tribe moved to do just that, the Pages went to court. When they finally ran out of legal options, they created a media circus. Though it was the Pages who stalled and stalled the return of the child, that didn’t stop them from claiming in a petition  -- on Change.org – that theirs was “the only family that she has ever known.” The claim was echoed in one news account after another.

The claim is false. Lexi was in continual contact with her extended family – and they already had taken in Lexi’s sister.

Almost every news account claims the child was sent to relatives, in the words of one story, “all because of her Native American heritage” and ICWA.  But federal law also calls for giving preference to relatives, and keeping siblings together – precisely because both practices are best for children.

Indeed, in a series of tweets, Nicole Cliffe, editor of The Toast explained the entire case better than most of the mainstream media.

 Cohen bemoans the fact that under ICWA, child welfare agencies are supposed to make “active efforts” to keep families together, theoretically a higher standard than the “reasonable efforts” required for non-Native children.

But the reasonable efforts requirement was never enforced and was rendered effectively meaningless by ASFA.  In Michigan, where Ricky Holland died in his adoptive home, 40 percent of judges surveyed admitted that they lie and certify that “reasonable efforts” were made to keep families together even when they don’t really believe it. 

And the fact that four separate studies since 1996 found that 30 percent of foster children could be home right now if the families simply had decent housing further illustrates that in practice “reasonable efforts” often means zero effort. So in real life, “active efforts” means ever-so- slightly more than zero. 

When it comes to the treatment of Native American children, that’s the real horror.

Sunday, May 8, 2016

Child abuse in Texas: Things you should not do in an emergency

Photo by James Cridland
The Dallas Morning News reported last week that: 
Tens of thousands of infants and children believed to be in imminent danger of abuse or neglect, even death, are not being seen promptly by state child abuse investigators — and thousands of them haven’t been checked on at all. …
Across Texas, on an average day, nearly 700 unseen children are classified as extreme cases — “Priority 1” in the agency’s terms …
But the most staggering numbers come from Harris County, where about 1,300 children who are supposed have already had a face-to-face contact with a caseworker haven’t been seen. The unvisited children account for about 22 percent of all cases referred to that office in March and April, The News’ analysis found. 
The reason all these children aren’t being seen?  Caseworkers are overloaded.

A Morning News editorial correctly calls this “an emergency.”

Here are some things you should not do in an emergency:

● Texas should not be investigating and taking away children from a Harris County family like this one.

● Texas should not be investigating and taking away children from a Harris County family like this one, either.

● Texas should not be taking away children at a rate we now know is far above the national average, even when rates of child poverty are factored in.

And Texas journalists might want to spend some time watching out to be sure that the new spending required to meet the terms of a federal court decision isn’t stolen from the few things being done in that state that actually work – like this, in Bexar County.

Then, maybe, caseworkers actually would have time to get to all those “Priority 1” children they’re not seeing now.

Wednesday, May 4, 2016

Child Abuse: The not-really-all-that-shocking truth

Imagine you read an article that began like this:

“A reckoning is coming in gerontology. New studies show that when a group of 95-year-olds is followed for five years, a greater proportion die than when they are followed for only one.”

You’d probably think it was a story from The Onion. You’d probably think the same if you read a story saying that people followed for five years, versus those followed for only one, are more likely to catch cold, fall in love, get in an auto accident, take a dream vacation, or discover the presence of gambling at a certain cafĂ© in Casablanca.

And yet we are supposed to be shocked – shocked! – when a study that follows children for five years finds more of what authorities define as abuse and neglect than studies focusing on a single year.

Tuesday, May 3, 2016

NYC Dept. of Investigation uses Trump-style tactics to attack City child welfare agency

The New York City Dept. of  Investigation could have investigated the City's
child welfare agency without sinking to HIS level. --Photo by Gage Skidmore
If there were a Donald Trump School of Fearmongering-By-Horror-Story, the Commissioner of the New York City Department of Investigation (DOI), Mark Peters, would graduate with honors.

Peters issued a report on the city’s Administration for Children’s Services (ACS) blasting the agency for alleged systemic failings that contributed to two child abuse deaths and one near fatality.  At least the report strongly implied the failings were systemic – Peters provided no actual evidence for this.

Peters got exactly the headlines and stories he apparently craved: “ACS Conducts Lax Investigations Into Child Abuse And Neglect,” says Gothamist,  “Rampant ACS Failures Let 2 Children Die and Allowed Abuse: Investigators,” said DNAInfo.  Or, as the New York Post put it:

The Administration for Children’s Services is so rife with “investigatory failures and deficient casework, lax oversight of foster care providers and a lack of data collection’’ that it may “actually have put [kids] in harm’s way,’’ according to Mark Peters, …

The report itself substantiates none of this. Indeed, the methodology makes such substantiation impossible.

The way to know how any agency typically fails is to examine typical cases.  DOI could have truly helped New York’s vulnerable children by examining a comprehensive, random sample of case files.  That would have given DOI an excellent sense of how – and how often – ACS makes mistakes.  And it almost certainly would have revealed mistakes in all directions; with caseworkers wrongly placing some children in foster care even as it wrongly left other children in dangerous homes.

Instead DOI opted for the Trump approach – wild extrapolation from horror stories. DOI chose to focus only on three horror story cases where children were killed, or nearly died in their own homes – leaving the misimpression that this is the only kind of error ACS makes. Then DOI painted with the broadest of brushes, suggesting with little or no evidence that the failures in the horror stories were widespread. For reasons discussed below, this approach to “investigating” risks making all children less safe.

What DOI did here is the equivalent of examining the failures at The New York Times that allowed Jayson Blair’s made-up stories to get into the paper, and then claiming that the Blair case proves the Times suffers from a widespread, systemic problem of fabricating news stories.

DOI claims that they don’t know how widespread the problems really are – even as they imply that they’re probably rampant – because ACS didn’t have precisely the data DOI wanted at the time DOI asked.

That’s a copout.  Had DOI chosen to look at a random sample of cases, that problem would have been solved – the random sample would tell DOI, and the rest of us, - if a given failing was isolated or widespread.  But it would be less likely to get Mark Peters into the newspapers and on TV.

And there’s another reason DOI can’t accurately generalize from the horror story cases.  Apparently, the deaths and the near-fatality occurred in 2014 – only months after Bill de Blasio became mayor and named Gladys Carrion to run ACS. (Oddly, the report itself never mentions when the deaths and the near-fatality took place – I had to find that out from the Daily News.) And in two of the cases, the errors cited in the report began fully 12 years earlier, spanning a time period ACS was engulfed in a foster-care panic, a huge sudden surge in removals of children from their homes – following the death of Nixzmary Brown in 2006.

DOI even was highly selective in its choice of horrors. Surely the case of Cesar Gonzales-Mugaburu, who allegedly was allowed to abuse children placed in his foster home by ACS and its private agency contractors for decades, was just as worthy of investigation.  That case is a reminder that foster care is no panacea.  And study after study shows high rates of abuse in foster care itself.


In two places, DOI did cite actual data.  But in one of these places, DOI was remarkably selective.

The report notes that the rate at which children left in their own homes are maltreated again – 16 percent - has not declined in recent years.  And yes, that rate is too high.  (The only acceptable goal is, of course, zero.)  But DOI does not mention that this rate is lower than the 17 percent in 2011 and 2010.  The rate also was 17 percent in 1998 – the same year that the city took away more children than any other in more than two decades.  So to imply, as the report does, that this rate would decline if only more children were torn from their homes, is irresponsible.  Indeed, given the rate of abuse in foster care, any such implication is dangerous to children.

The report authors also wrote as though they were shocked – shocked! – that private child welfare agencies contracting with the city don’t take part in a mad rush to terminate parental rights if a child has been in foster care for 15 of the previous 17 months.  Yes, the so-called Adoption and Safe Families Act requires this – under some circumstances.  But there are multiple exceptions. 

And that’s fortunate.  Because the mad rush to TPR has led to an explosion in the number of “legal orphans” – children who “age out” of foster care with no ties to their birth parents and no adoptive home either.

When a private agency supervised by ACS doesn’t seek TPR within the required time frames it means that in some cases they did indeed fall down on the job. More often it’s probably because, as AP aptly documented just a few days ago, the city and its contracted private agencies are realizing the harm in that approach.

And the fact that an agency fails to document a “compelling reason” not to file for TPR does not mean no such reason exists. It may just mean the agency failed to do all the right paperwork.

As for DOI’s hyperventilating about these agencies supposedly violating federal law – I doubt there is a child welfare agency in the country that manages to comply every time (and those that come closest, as the AP story aptly documents, probably are doing children a lot more harm than those that don’t).

The recommendations are not the problem

Of course it’s possible to learn lessons by examining the worst failures, as long as it’s understood that those failures don’t, in and of themselves, tell us what is systemically wrong with ACS, or any other agency.

And, by and large, the specific recommendations in the DOI report appear to be reasonable; though it’s hard to be sure since, again somewhat oddly, the report does not include all of the recommendations.  The problem with this report is its overall tone, as if Peters is nostalgic for the days in which a take-the-child-and-run mentality plunged ACS into chaos, destroyed thousands of families needlessly – and made all of the city’s children less safe. 

Since 1995, foster-care panics have occurred twice in New York City – and both times children became less safe as a result.  Starting such panics is easy; stopping them is a lot harder. 

It must never be allowed to happen again.