Foster care in California: Confessions of an “adultist”

           A couple of weeks ago, the “patient of the week” on the medical drama House was a 16-year-old girl who wanted to set a record for being the youngest to sail solo around the world.  But her mystery disease turned out to be cancer in one arm.  It could be cured only by amputating the arm.

            The girl wanted to wait until after she sailed around the world.  The doctors said waiting that long stood an excellent chance of killing her.  The girl said she didn’t care.  But it wasn’t her decision.  She was not an adult.  Her parents decided her life was worth more than a sailing record.

            I thought about that drama when I read what the California Youth Connection, a group made up of current and former foster children, was proposing to trade in exchange for supporting a bill to open some of what California calls “dependency courts” in child welfare cases.

           

            Under current state law these courts are presumed closed, but judges can open them.  Legislation proposed by Assemblyman Mike Feuer (D-Los Angeles) would have created a pilot project reversing that presumption in three counties.  These courts would be open unless a party could give a judge a good reason to close all or part of a hearing.

            I discussed the merits of opening these hearings on this blog yesterday, noting that, in what amounts to a triumph of the tyranny of personal experience over sound judgment, CYC opposed the bill.  But they did offer an alternative: Take the decision away from the judges entirely and give it to the children.  Under CYC’s proposed amendment, the child whose case was at issue would decide if the court hearing would be open or closed.

            I have not read any news account explaining how this would work.  Would there be a hearing in every case?  At what age would a child be granted this power?  16?  Eight?  Four?  What if siblings are involved in the same case and they disagree?  

            But the problems with this go way beyond the purely practical.  For starters, it would make California dependency courts even more secret than they are now, since under current law a judge can override the presumption that hearings are closed.  As Assemblyman Feuer pointed out, under this proposal, a party to the proceeding would have more power than the judge.

            What’s really alarming is how many adults rushed to embrace this abdication of adult responsibility.  Posting on the website of the San Jose Mercury News  Connie Robbins writes: “I can't understand why the amendment to include the child in the decision to make it public or not is going too far? Why should an outsider have a more ‘legitimate’ interest?” Writes Matt Anderson: “Interesting how someone can say that the opinion that mattes the most, that of foster youth, goes too far.”

HOW COURTS ARE SUPPOSED TO WORK

Well, for starters, the whole point of the court process is to determine facts, get at truth and obtain a decision from someone who is neutral and therefore less likely to be biased – in other words, an “outsider.”  The entire process becomes a sham, and becomes dangerous, when the power to make vital decisions is ceded to one of the parties. 

            In criminal trials, even when the victim has been raped, and, for that matter, even when that rape victim is a child, the victim does not decide if the public will be barred; and neither does anyone else with a vested interest.  All such trials are presumed open, with far less leeway to close them than the California bill would have allowed in dependency court.

That’s because any potential harm from openness is vastly outweighed by the potential sloppiness and, sometimes, corruption likely to invade the criminal justice process when trials are secret.  So prosecutors can’t close the courtroom and neither can defense attorneys or the accused, or even victims.  Only a neutral arbiter, - an “outsider” known as a judge - can do that.

It makes no more sense to cede the decision on opening or closing a hearing to a child than it does to simply dispense with the whole trial and have the child decide the outcome of the case.

GETTING IN TOUCH WITH YOUR “INNER ADULT”

But the most revealing comment supporting CYC’s proposed amendment is from a clinical psychologist, Dr. Greg Manning, who condemned Assemblyman Feuer’s opposition to it, declaring that  “The Senator’s [sic] position wrecks [sic] of Adultism.”

            I confess I’d never heard that term before (and now that I have, I can safely say it’s not going to do anything to disabuse the rest of the nation concerning certain stereotypes about California.)

I’m hoping Dr. Manning and those who share his views will be able to get in touch with their “inner adult.”  Because a little good old fashioned “adultism” is exactly what is needed here.  That’s because you don’t need a clinical psychology degree to notice that  children are not adults.  There is a reason that 12-year-olds can’t get married, 14-year-olds can’t drive, 15-year-olds can’t vote and 16-year-olds can’t drink alcohol legally.  It involves hopelessly adultist concepts like maturity and judgment.

That doesn’t mean young people shouldn’t play a strong role in advocating for what they want and trying to persuade a judge that they’re right.  Indeed, that role should be much stronger than it is now in most courtrooms.

            For example, typically children are assigned “law guardians” to represent them.  But they don’t really. The law guardian argues for what the guardian thinks is best for the child, even if the child disagrees.  That’s wrong.  I believe strongly that, starting at the age at which they can make a rational decision, a child’s lawyer should act like a lawyer and argue vigorously for whatever the child wants – even if the lawyer does not personally think that’s in the child’s best interests.

But that’s not because I think the child necessarily should get what he wants.  Rather, it’s because a just outcome is most likely when all sides have someone making a vigorous case for what they want – with a neutral arbiter, an outsider, actually making the decision.

I can think of few adult acts more irresponsible than leaving what might be literally a life or death decision to a child – whether that decision involves sailing around the world even if you’re likely to die or whether the court hearings where your fate is to be decided should be open or closed.  Children should make clear what they want, and they should have an advocate arguing vigorously for that position.  But deciding if a hearing will be open to the accountability that comes with scrutiny or closed because of the hypothetical embarrassment to the child is a decision best made by someone who is neutral and someone who is an adult.

Adultist? You bet.

Foster care in California: the tyranny of personal experience takes a heavy toll

           About a year ago on this Blog, I wrote about the tyranny of personal experience.  By that I mean people who have had such searing, profound, often traumatic personal experiences that they can’t see beyond them.  They view everything through the lens of what happened to them, unable to recognize that their experience may not have been the norm, or even that someone else might have had a personal experience that was equally profound and equally traumatic, but precisely the opposite.  That’s the problem with personal experience: it’s personal.

            The failure to recognize that good decision making can’t be based solely on “what happened to me” leads to a lot of faulty conclusions and faulty decisions, something aptly illustrated in this segment of The Daily Show – which, starting about 4:50 in, turns out to be the best analysis of the tyranny of personal experience I've seen anywhere.

When anecdotes collide, I argued, it’s time to look at the data, and base decisions on what those data reveal about what happens to most people in most places most of the time.

            The tyranny of personal experience has just taken a particularly sad toll in California.  It killed for this year a bill that could have begun the process of opening juvenile court hearings in that state to press and public.  The legislation would have created a pilot project in three counties, with the final decision in each case still up to the judge.  The sponsor, Assemblyman Mike Feuer, (D-Los Angeles) promises to bring it back in 2012. "This is not a bill to me,” Feuer said, “this is a cause."

            At least 17 states have opened their juvenile courts to the press and the public since 1980.  Not one has closed them again.  That’s because the Chicken Littles were wrong – all the hypothetical scare scenarios proved groundless.  And in real life, there were improvements in some child welfare systems, and dramatic benefits in some individual cases.  Details are in our  Due Process Agenda, in  the excellent Pittsburgh Post-Gazette series “Open Justice” and in this recent law review article, available by clicking here and then clicking on the download link at the top of the page.

            Despite the success elsewhere open courts bills had died before in California, with opposition led by groups like the California chapter of the National Association of Social Workers, the union representing caseworkers, and the trade association for county child welfare agencies (individual counties run child welfare in California).  Obviously, they didn’t want the public to see what passes for casework in child welfare.  But this year it looked like the bill had a real shot.

            Until the California Youth Connection announced it was opposed.  CYC is the largest best organized group of its kind; a lobbying and advocacy organization made up of and run by current and former foster youth.

            As the San Jose Mercury News reports today, some observers noted that CYC’opposition “provided cover for other bill opponents.”

A PAT ON THE HEAD

            The way adults usually deal with groups like CYC is to figuratively pat the members on the head, tell them how wonderful they are, gush over how much they supposedly admire what the young people have done, patronize them at best or, as in the case of the notorious Pew Commission on Foster Care, manipulate them at worst.  Then they support what the young people want as long as the child welfare establishment wants it too and, especially, if it doesn’t cost money.  Were I a young person who’d endured foster care I’d have had it up to here with that by now.  So I intend to treat CYC with more respect.  I take them, their views and, yes, their personal experiences seriously enough to argue with them when I think they’re wrong.  And I think they are seriously wrong about open courts.

            There is nothing in news accounts to indicate that CYC researched the experiences of young people in states with open courts.  Rather, they polled their members who appear to have made their decisions based on their personal experiences.  A minority had personal experiences that led them to wish the courts had been open in their particular cases.  A majority had personal experiences that led them to be glad the courts were closed.

            Either way, that’s a poor way to decide how to influence public policy that affects not just you but thousands of young people, many of whom you will never know.

            Another group of California foster youth disagrees.  Amanda Riddle, Foster Youth editor of the newspaper L.A. Youth posted this comment on the Blog WitnessLA:

We at L.A. Youth newspaper support opening up dependency court hearings. For the past seven years, we've been publishing stories written by foster youth about their experiences in the system. We've seen how the decisions made in court have a huge impact on their lives, and they often feel they have little control over what happens to them. The more sunshine on the process, the better.


Another former foster child, not connected to CYC, took pains to distance herself from the group's position in this post on the website of the Contra Costa Times:


I suffered through the court systems as a child and I WISH there was more accountability and that people really KNEW what was going on in that court room.  The foster youth organization does NOT speak for me. [Emphasis in original].

            On the other hand, a former CYC member explained why she supported CYC’s decision in a post on the Mercury News website.  Her comment is a perfect example of the tyranny of personal experience.

She suggested open courts are not needed because “each case is overseen by an attorney, a social worker, foster parents, and in some cases biological parents, therapists, and other experts.”

Presumably, that’s how it worked in her personal case.  But much of the time those protections exist in name only.  As the Mercury News noted, the newspaper’s 2008 investigation, made possible in part by judges who opened their own courts to scrutiny “revealed deluged judges and court-appointed lawyers failing to meet even basic standards of adequate representation for children and parents, despite the high stakes.” 

The former foster youth continues: “Children are not taken from their homes for no good reason at all.”

If that is the case, what explains what happened in a small town in Tennessee a few years ago? A judge took away the children of several immigrant mothers and told them if they did not learn English they’d never get those children back.

But the only reason we know this is that, unlike California, in Tennessee these hearings are at least nominally open. A reporter in the courtroom wrote what he saw.  Then the alternative weekly in Nashville picked up the story and contacted NCCPR.  Then we put out a press release which caught the attention of the Los Angeles Times.  That story caught the attention of the Southern Poverty Law Center.  They came in and represented the parents.  The children were returned to their families and the judge was censured.

But we never would have known, and those children never would have gotten their families back, had the courts been closed.

            Those very young children had a very different personal experience from the former CYC member.

            In California, we are likely to find out about such cases only in the rare instances in which child protective services reaches into families affluent enough to fight back by filing a civil lawsuit. Just this week, the U.S. Supreme Court refused to hear an appeal from Orange County which was ordered to pay $4.9 million to a mother whose children were, indeed, taken for “no good reason at all.”  And what’s more, the jury found, two caseworkers lied to a juvenile court commissioner in order to get him to approve removing the children. (One of those caseworkers has been promoted and now trains other caseworkers.)

            One of those children, now a young adult, is bringing her own lawsuit over what she had to endure.  I wonder if this former foster child feels well represented by CYC’s position?

            CYC did propose an alternative in exchange for its support.  Assemblyman Feuer wisely rejected it.  I’ll discuss that tomorrow.

TOMORROW: Confessions of an “adultist.”