Monday, August 7, 2017

Brilliant reporting on child welfare in The New Yorker – made possible by open courts

It’s another example of why “sunshine is good for children.”

The late Judge Judith Kaye opened New York's
family courts to the press and the public

On the heels of the outstanding story in The New York Times about foster care as the new “Jane Crow” comes another brilliant deep dive into child welfare in New York City – this time from The New Yorker. (Once again, as you read it, please keep in mind that in most places, the child welfare system is worse, often far worse, than in New York City.)

Almost as striking as the story itself is why reporter Larissa MacFahrquhar wrote it. Here’s how she explained it in the New Yorker’s daily email newsletter:

How do you decide whether to take children from their parents? For the most part, we read about child-protective services only when they fail spectacularly—when a child is killed at home. The press then excoriates the usual suspects—the caseworker (How could she miss signs that now seem so obvious?), child protection (How could they train their workers so poorly?), and the city (Does it care so little about children that it won’t pay for enough caseworkers to protect them?). 
Because of this, most of the pressure on child protection is in one direction—in favor of removal. But it’s no small thing to take a child from his family. It seems strange to me that removal has come to seem the safe and cautious thing to do, and, since the press has played a large part in promoting this idea, I thought it might be useful to have a journalistic account of both sides of the story.
I sat in on the Bronx Family Court for several months and watched judges grapple with this awful decision. One mother had been coming to family court for eight years, since her young daughter had burned herself on a curling iron. For much of that time, her children had been in foster care. The foster-care agency believed that the foster parents should adopt the children. Child protection was nervous about their safety if they returned home but also knew that children often fared badly in foster care. The mother’s lawyer said that the mother loved the children and that her mistakes didn’t justify keeping them apart.
Everyone was arguing for the best interests of the children. The mother sat, mostly silent, as the lawyers made their cases

Several things stand out about this story, but it may be most notable for how well it answers one question.  Research has told us over and over again that in typical cases children placed in foster care fare worse even than comparably-maltreated children left in their own homes.

As the reader is placed in the position of the mother in this case, forced to watch helplessly as the children deteriorate in foster care, we understand why this happens.

Something else that stands out about this story: In most states, it would have been impossible to do it. That’s because it relies so heavily on the reporter’s ability to see the process for herself, by spending months in what, in New York, is known as Family Court.

In most states these hearings are closed. That’s not to protect children, it’s to protect almost everyone except the children – CPS agencies that do terrible things to families and lawyers and judges who either can’t or won’t do their jobs.

In 2001, another superb journalist, former Pittsburgh Post-Gazette reporter Barbara White Stack examined this issue in what is still the definitive series on the topic, Open Justice. She found that none of the excuses for closing hearings held up to scrutiny and all over the country onetime opponents became supporters. (We summarize some of the key findings of that series, and update some of the data in NCCPR’s Due Process Agenda.)

So along with MacFahrquhar, the courageous mother at the center of the story and some great lawyers from the Bronx Defenders, someone else deserves credit for this particular piece of outstanding journalism: the late Judge Judith Kaye.

She’s the one who ordered these courts opened in New York, when she was chief judge of the state’s highest court, the Court of Appeals.  As she said at the time: “Sunshine is good for children.”