“[Like being] stopped and frisked for 60 days”: NYC family policing traumatizes kids, confuses poverty with neglect and is racially biased. Who says so? Some of their own caseworkers.

It’s all in a report commissioned by the Administration for Children’s Services itself. Among the recommendations: “Transparently share information and data around decision-making.”  ACS’ response: Don’t release the report!

In a survey, ACS' own workers say there should be a law requiring them
to tell families their rights, but their leadership opposes it.
 So JMACForFamilies is taking on the task!

 

This is the second of three parts about a scathing report, commissioned by the New York City family policing agency itself, that found pervasive racial and class bias in the agency, and rampant confusion of poverty with “neglect.” 

● Yesterday: Context for the new study: The Administration for Children’s Services’ own data show that when the agency pulled back, did fewer investigations and took fewer children – child safety improved. 

● Today: ACS commissioned a study of racism in the agency.  Then they suppressed it.  Family defenders had to use the state Freedom of Information Act to get hold of it.  Once you read it,  you’ll see why ACS wanted to hide it. 

● Tomorrow: The New York Times published a front-page story about the study that was, mostly, very good.  But it still fell into some of the traps that characterize much of the journalism of child welfare – including a crucial misunderstanding of poverty and neglect and one inflammatory claim that, as originally published, was flat wrong. 

● And always: New York City has one of the least awful family policing systems in America. As you read about what the caseworkers themselves are saying there, remember: Wherever you are, it’s probably worse.

 The front page story in The New York Times begins this way: 

For decades, Black families have complained that the city’s child welfare agency, the Administration for Children’s Services, is biased against them. 

It turns out that many of the agency’s own employees agree, according to a racial equity audit the agency commissioned but never publicly released. 

It’s a very good story, a huge improvement over much recent Times coverage. It also has some notable flaws, – including one inflammatory claim that, as originally published, was flat wrong.  I’ll discuss all of this in a post tomorrow.  For now, let’s take a close look at the report itself, especially since it’s a report ACS didn’t want you to see. 

The report, from the National Innovation Service, was commissioned in 2020, during the tenure of former ACS Commissioner David Hansell.  But Hansell’s biggest concern always was protecting his own image – and that of then-Mayor Bill de Blasio.  So, notwithstanding that the report’s recommendations include “Transparently share information and data around decision-making” Hansell never released it.  

But he did mention it at a City Council meeting.  One of the city’s providers of high-quality family defense, The Bronx Defenders sought it under New York’s Freedom of Information Act  -- and they got it during the administration of a new ACS Commissioner, Jess Dannhauser. 

What’s in the report 

It’s easy to see why Hansell was so embarrassed. 

The report includes interviews with parents, family defenders, and more than 50 ACS employees from frontline caseworkers to top staff.  Among the findings: 

Participants described a system where race operates as an indicator of risk. … [W]hite parents are presumed to be innocent and are repeatedly given opportunities to fail and try again, while Black and Brown parents are treated at every juncture as if they are not competent parents capable of providing acceptable care to their children. … Black and Brown parents are generally presumed to be a risk to their children and are often stripped of their abilities to make decisions about their families.

 The report also includes a crucial finding about poverty and neglect – one that, as I will discuss tomorrow, the Times misunderstood: 

The way that ACS views safety is clearly linked to class. Participants described how poverty is criminalized, as signs of poverty are often seen as indicators of neglect. Parents felt penalized for being poor, as investigatory processes sought to catalog the ways in which parents struggled to provide food, housing, and resources for their children, and frame it as neglect. … 

Parents and advocates especially emphasized homelessness and unstable housing, limited money to purchase food, and lack of access to stable medical care as crucial areas where parents needed to be supported rather than have their children taken away for neglect. 

Something else the report understood, but the Times story underplayed, is the harm all this does to children. 

ACS’s power to remove a child is a power akin and second only to the (state sanctioned) power to take someone's life. The experience of an investigation, even when an allegation is ultimately determined to be unfounded, too often traumatizes parents and children. One staff member described it as the experience of being stopped and frisked for sixty days, and participants shared countless stories of reports filed on Black and Brown parents that were grounded in unfounded claims of neglect or risk of neglect. [Emphasis in original]. 

Staff also show they understand the Big Lie of American child welfare: the false claim that the more homes to which you demand entry in the middle of the night, the more children you roust from their beds for traumatic interrogations and stripsearches, and the more children you carry off into the night, the more you supposedly ensure “child safety.” 

Staff know this underestimates the trauma of investigation and underestimates the even worse trauma of foster care. Though not mentioned in the report, it also underestimates the enormous risk of abuse in foster care itself. 

But staff also know something else: They know exactly how this mentality makes all children less safe.  According to the report: 

 ACS staff frequently encounter cases where mandated reporters file reports that describe conditions indicating poverty but not neglect. The lionshare of examples that staff discussed were from the Department of Education, where DOE staff frequently file reports based on the cleanliness of a child's clothing or whether they bring food to school … ACS's engagement with so many families where the indicators of neglect were simply indicators of poverty took away from its ability to identify and address situations of intentional parental neglect and abuse of children. [Emphasis added.] 

This is confirmed by the new data discussed in yesterday’s post, showing that when, because of COVID, teachers and other school personnel weren’t deluging ACS investigators with false reports trivial cases and poverty cases, child safety improved.  

In the report, staff also acknowledged the role of what’s been called “defensive social work.” They know the complaint that workers are “damned if we do and damned if we don’t” isn’t true. They know that when it comes to taking away children, they’re only damned if they don’t.  From the report: 

Fundamentally, internal and external pressures drive staff to seek removal as a first course of action, to cover the reputation of staff, internally, and ACS, externally. … 

Staff described an internal culture that operates on fear and intimidation, where staff can easily find themselves in front of a firing squad being interrogated about their work on a case or reprimanded for not meeting their target metrics. … This frequently means that staff err on the side of safety for themselves, by seeking removal and thereby ensuring that they won't be liable in the case of abuse. … Staff frequently stated that this culture of fear incentivized the removal of children, positioning CPS staff as detectives looking for reasons to remove children, rather than as social workers aiming to support families. 

The report also addresses a common misconception about institutional racism: that if there are a lot of nonwhite employees, the institution can’t be racist.  A majority of ACS frontline caseworkers are nonwhite.  However, the report explains: 

Frontline staff and lower-level managers in [the ACS Division of Child Protection] identified a clear racial hierarchy within ACS, which means that Black and Brown staff don't have the power to inform policies and practices and voice their experiences of racism. … The central office was described as predominantly white, where staff rarely had direct service experience and often were hired from graduate school or adjacent social service systems. In contrast, borough offices were depicted as having majority Black and Brown staff who often reside in the communities they serve and were led by leaders with direct service experience at ACS. DCP staff described a dynamic where predominantly white leaders in the central office make policy for Black staff to carry out in the borough offices. 

Staff ... pointed to many policies and practices that they know to be harmful to parents, but are still responsible to enforce and uphold. For this reason, staff feel complicit in the harm that ACS can cause Black and Brown families and no power within the agency to make changes that might benefit them. … 

Also revealing: Widespread support among workers themselves for legislation that would require them to give the equivalent of a Miranda warning, fully informing families of their rights.  They also support extending New York’s system of high-quality legal representation to a point “at or before their first interaction with ACS.” 

ACS has opposed both these ideas.  On the rare occasions ACS reaches into a white, middle-class home, parents can afford to get a lawyer immediately and that lawyer can tell them their rights. Poor Black families don’t have that option. According to the report: 

Parents and advocates see ACS's active resistance to both Miranda rights bills and … early legal representation … as a clear sign of its racism. 

Tomorrow: A close look at what The New York Times made of all this.

New child welfare data from NYC confirm: The “unintended abolition” worked!

Key child safety measures show significant improvement

A Black Families Matter rally in New York City in 2020.  (Photo by Rise)

 

This is the first of three parts about a scathing report, commissioned by the New York City family policing agency itself, which found pervasive racial and class bias in the agency, and rampant confusion of poverty with “neglect.” 

● Today: Context for the new study: The Administration for Children’s Services’ own data show that when the agency pulled back, did fewer investigations and took fewer children – child safety improved. 

● Tomorrow: ACS commissioned a study of racism in the agency.  Then they suppressed it.  Family defenders had to use the state Freedom of Information Act to get hold of it.  Once you read it,  you’ll see why ACS wanted to hide it. 

● Wednesday: The New York Times published a front-page story about the study that was, mostly, very good.  But it still fell into some of the traps that characterize much of the journalism of child welfare – including a crucial misunderstanding of poverty and neglect and one inflammatory claim that, as originally published, was flat wrong. 

● And always: New York City has one of the least awful family policing systems in America. As you read about what the caseworkers themselves are saying there, remember: Wherever you are, it’s probably worse.

 

There are two principal ways to measure child safety and the performance of family policing agencies. One makes sense, the other makes everything worse. 

Using the method that makes sense, new data show that during and after the worst of the COVID-19 pandemic, when the city’s family police agency, the Administration for Children’s Services, stepped back, mutual aid groups stepped up and the federal government gave poor people what they need most – money – child safety improved.  The data confirm the findings of Prof. Anna Arons of New York University School of law who called it, “An Unintended Abolition.”  They are still more evidence that the fearmongering claims about COVID leading to a “pandemic of child abuse” were false. 

Before getting to the data, let’s explore those two methods for measuring safety: 

Method #1 The worst method is the one most beloved by journalists: A child “known to the system” has died and the case file has more “red flags” than a Soviet May Day parade.  Child welfare establishment groups rush to claim the system is doing too much to try to keep families together.  Reporters buy it, and their stories almost always include a reference to their beloved “swinging pendulums.”   

Even if total child abuse deaths have remained the same or declined, if there are three such cases in rapid succession, it is officially declared by journalists to be a “series” of deaths (unless they’re writing for a tabloid, in which case it’s a “spate”).  The agency is then deemed to be “beleaguered” and/or “embattled.”  When it was pointed out to one of the worst reporters ever to cover child welfare that, while she was doing exactly this, the actual number of child abuse deaths per year had not increased, she famously replied “it was a series, but not statistically.”  So the lesson to agency chiefs is: If the horrible, and extremely rare, tragedies of child abuse deaths are evenly spaced, it’s one thing; if they happen to occur in rapid succession, that’s a series/spate and you are officially embattled/beleaguered. 

What all of this usually does is set off a foster-care panic, a sharp sudden surge in removals of children.  This further overloads workers so they have less time to find the relatively few children in real danger.  Child abuse deaths don’t stop, they don’t even decline, often they increase. 

And it constrains what public officials say and what they can support.  If, for example, Dannhauser, were to come out for key legislation to give families “Miranda rights” or to give ACS the authority to screen out false reports forwarded by the state (something discussed in future posts in this series) and if, in the ensuing months, total child abuse deaths declined but three happened to occur in rapid succession, a “news analysis” in The New York Times probably would say something like this:  “After a series of deaths, Dannhauser, the embattled commissioner of the beleaguered Administration for Children’s Services, is seen by some observers as letting the pendulum swing too far toward family preservation.” 

Method #2: Because fatalities are, fortunately, as rare as they are horrifying, they tell us almost nothing about overall system performance.  There are two measures that do indicate if children are getting safer: One is re-abuse – that is, of all children caseworkers alleged were abused or neglected how many were allegedly abused or neglected again within a year? The other is foster-care recidivism – of all children reunited with their families, what percentage had to be placed again within a year? 

This measure also has flaws.  To be significant, changes should be substantial and sustained.  A tiny increase or decrease means nothing, and even a big change may mean nothing if it’s only a single year’s results. 

But we now have a fair amount of data on this in New York City.  The data are measured by fiscal year. So the baseline is the year ending June 30, 2019.  In FY 2020, which included the start of the pandemic, reports alleging child abuse or neglect dropped sharply, entries into foster care also declined.  But contrary to the fearmongering that made it into countless news stories, the absence of all those overwhelmingly middle-class disproportionately white mandated reporters having their “eyes” constantly on children who were neither did not set off a “pandemic of child abuse.”  On the contrary, both key measures improved.  

But that didn’t stop the fearmongers.  They poured their old whine into new bottles and said that as soon as schools reopened, we’d see a surge in child reports as all that hidden child abuse came to light. 

That didn’t happen either.  

After schools reopened, the number of reports declined again, entries into foster care declined again and the key child safety measures improved again.   In FY 2022, reports started to increase again, so did foster care entries, but both still were way below pre-pandemic levels.  By then, compared with before the pandemic, re-abuse had declined by 15% and recidivism had declined by 40%   It should be noted that the biggest decline in recidivism occurred in a single year, and, as I said above, single-year changes should be treated with caution.  But the multi-year trend still is clear: As ACS stepped back, and the community stepped up, child safety improved. 

One reason this is so important: Family defenders just got hold of that scathing report, mentioned at the start of this post; the one commissioned by ACS itself, finding pervasive racial and class bias in ACS.  Who said so?  Among others, frontlines caseworkers for ACS. 

The report was the subject of a front-page story in The New York Times.  Over the next two days, we’ll look first at the report itself, and then at how the Times covered it. Here's Part Two.

NCCPR news and commentary round-up – special Harm of ASFA edition

Saturday marked a tragic milestone – the 25^th anniversary of a law that has harmed millions of children, the so-called Adoption and Safe Families Act.  So this week, the round-up is devoted entirely to news, commentary and resources concerning the harm of ASFA. 

News: 

● A parent may be sentenced to a relatively short time in prison – but, because of ASFA, for their children it can lead to a life sentence of separation from parents they love.  The PBS NewsHour has an in-depth report. 

Recent commentary: 

● From Prof. Dorothy Roberts of the University of Pennsylvania Law School and author of Shattered Bonds and Torn Apart, the definitive books on family policing and race, in Slate: "The Clinton-Era Adoption Law That Still Devastates Black Families Today."

● From Prof. Sarah Katz, director of the Family Law Litigation Clinic at Temple University, in the Philadelphia Inquirer: “A federal law has been destroying families for 25 years.  Let’s get rid of it.” 

● From Prof. Mical Raz in The Washington Post: “Our adoption policies have harmed families and children.  The Clinton-era Adoption and Safe Families Act passed 25 years ago. It’s time to reexamine its origins.” 

● From Josie Pickens and Dean Alan Dettlaff of the upEND movement, in the Houston Chronicle: “Instead of making children safer … ASFA became yet another means for national and state governments to forcibly and permanently remove Black children from their families through a speedy process of terminating parental rights.” 

● From longtime family defender Diane Redleaf in Reason: “The Adoption and Safe Families Act Takes Kids Away From Loving Parents.” 

● And from NCCPR in the Albany, N.Y., Times Union “This law was supposed to protect kids from abuse. It hasn't.” 

Previous commentary: 

● From Prof. Shanta Trivedi, director of the  Sayra and Neil Meyerhoff Center for Families, Children and the Courts at the University of Baltimore, in The Imprint: “Adoption and Safe Families Act is The ‘Crime Bill’ of Child Welfare.” 

● From Kathleen Creamer, managing attorney of the Family Defense Unit at Community Legal Services of Philadelphia and Prof. Chris Gottlieb, director of the New York University School of Law Family Defense Clinic: “If Adoption and Safe Families Act Can’t Be Repealed, Here’s How to At Least Make it Better.” 

Additional resources 

● NCCPR’s ASFA resource page, with an overview of the harm the law has done and responses to some of the excuses put forth by ASFA proponents.

Our annual reminder: End "child welfare"’s public celebration of family executions

 On this Saturday - “National Adoption Day” - who will stop to remember that for some children and some young adults every mass adoption ceremony, every treacly feature story on the local news is an act of cruelty – ripping the scab off a wound that never fully heals?

 

Termination of parental rights is child welfare's "death penalty."  So why do
some of the very judges who order a family "executed" preside over
public celebrations of the aftermath?   


This post originally was published on November 15, 2020

             There was a time when, as a people, we were so uncivilized that executions were a form of entertainment – a public spectacle to be celebrated. 

In Canada, for example, 

Before they were banned in 1870, executions in public places could draw thousands of spectators, including families and young children. Boisterous behavior and a less-than-solemn attitude marked these macabre gatherings.  “When the day of a public execution arrived, the businessmen closed their factories and their stores and the people put on their holiday dresses,” noted an 1894 article in the Evening Star about hangings in early Toronto.   

The last official state-sanctioned public hanging in the United States drew a crowd of 20,000.  Even then, reporters condemned it as a “carnival.” (I probably don’t even need to mention that the man they hanged was Black.) 

Fortunately, nearly a century later, we have, of course, outgrown such practices. 

Except in "child welfare." 

Termination of parental rights (or, as it should be called, termination of children’s rights to their parents) often is described as child welfare’s death penalty.  It is the prerequisite to any adoption of a child from foster care. 

And every year, all over America, we celebrate these family executions with a joyous public spectacle.  It’s called National Adoption Day.  This year it’s happening on Nov. 19. 

You know the drill. Open the court on a Saturday, bring in ice cream, cake and balloons, finalize foster-child adoptions en masse – and reinforce every stereotype about how the system supposedly “rescues” children from horrible birth parents and places them with vastly superior adoptive parents.  The same judges who are supposed to decide impartially on termination cases often lead these celebrations.

            Last year, when celebrations still often were virtual due to COVID, organizers of the Los Angeles County event added a particularly macabre 21st Century touch:  “A pool camera will be permitted at a pre-selected adoptive family’s home for coverage as the family’s virtual adoption ceremony takes place.”

  The whole spectacle also gets the courts and the local family policing agency (a more accurate term than “child welfare agency”) a guaranteed puff piece in the local newspaper celebrating what is, in reality, the aftermath of an execution.  And, of course, as with those other public executions, a disproportionate share of the families “executed” are Black. 

I’ve previously written that this day should be called National Child Welfare Hypocrisy Day – since while "child welfare" systems always piously proclaim that their first goal is to reunify a family they’ve torn apart, the outcome that brings them true joy, the one they celebrate, is when that child, overwhelmingly poor and disproportionately nonwhite, is adopted by someone who often is neither. 

Unlike some of my friends in the family preservation movement, I am not opposed to all involuntary adoptions of children taken from their parents.  I am not opposed to all terminations of parental rights.  On those very rare occasions where this is appropriate, I am not opposed to an adoptive family having a private, quiet celebration.  But each of these things should take place far less often than they do now.

 So in that sense, my previous column was too kind.  It said adoption was sometimes an appropriate second choice after reunification and sometimes the appropriate first choice.  In fact, adoption should be farther down on the list, after not only reunification but also guardianship and perhaps other options as well, such as tribal customary adoption, a practice used by some Native American tribes that might well be adaptable elsewhere.  And while a private celebration is one thing, it should never be a mass public spectacle – it rubs salt into too many open wounds, and not just for parents. 

Prof. Christopher Church, senior director of strategic consulting at Casey Family Programs, has argued that using the term “civil death penalty” to describe the terminations that come before the cake, ice cream and balloons actually understates the trauma to the child.  Horrible as it is to lose a parent to physical death, losing a parent to termination of parental rights can be worse. 

“When a child knows somebody is out there but they have no way of connecting to them, that is ‘ambiguous loss,’” Church said at a recent conference.  “That is a more complex trauma for children than death loss.  … Death is finality and [children] can comprehend that better.” 

Church also reminds us that before the joyous public spectacle there’s sometimes another ceremony, if you can call it that.  It’s called the “goodbye visit.”  Children are told they will never, ever see their parents again, and now they all must say goodbye.  No cake and balloons here; just tears and anguish. 

The children are not always saying goodbye just to their parents.  If one child is adopted and the others are not, the sibling bond is severed forever.  If a parent later has another child whom s/he is allowed to keep, the child who was adopted amid the ice cream and cake may never know that sibling – unless, when they are adults, they find some way to find each other. 

But hey, don’t let that spoil the party. 

I can imagine some readers thinking: But wait. We have to do this, don’t we?  After all, if a case goes to termination of parental rights, the parents must have been the worst of the worst, right? 

Wrong. The termination phase is as arbitrary, capricious and cruel as every other decision-point in child welfare.  As Prof. Vivek Sankaran, director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University of Michigan, has written: 

[C]ourts seem to terminate parental rights out of a sense of convenience. A child has been in foster care for 15 months, so let’s terminate. A foster parent prefers to adopt a child, so let’s terminate. A parent hasn’t fully complied with services, so let’s terminate. 

            Still another indication of what’s really behind termination cases can be seen in how different the outcomes are by age.  Among children torn from their parents during their first year of life, only 36% are reunified; 46% are adopted.  Then, year after year, reunification rates inch up almost every year until age 14. Nearly 54% of children taken at age 14 were reunified. 

            So are parents of infants vastly worse than parents of 14-year-olds?  Or do caseworkers have their own rescue fantasies triggered by a child about whom they can gush, “Awwww, he’s so cute!” 

            No, we don’t need adoption and the attendant spectacle of mass public family execution to give children “permanence.”  In fact, we don’t know how often adoption does that.  Child welfare systems don’t like to ask questions to which they don’t want to know the answers, so we don’t know how often, when, say, that cute baby becomes a teenager, the adoptive parents change their minds.  

            But even when the adoption doesn’t fall apart, and even when a child really can’t live safely with her or his own parents, the obsession with adoption still hurts children.  As Prof. Sankaran explains: 

Families, and the relationships within them, are far more enduring and resilient than we want to acknowledge. In our quest for legal permanence, we forget about a child’s need for relational permanence, often defined as a child’s lifelong connection with caring adults. For example, too often, we ratify adoptions with the hope of providing a child with a legally permanent home. But in doing so, we cut off the child’s ability to have permanent relationships with those who have – and will always – matter to him. A mother. A sibling. A grandparent. Hence the countless number of stories of adopted children searching for their kin.

           Other options, such a guardianship, don’t require a child to sacrifice any relationships. 

So this time, when National Adoption Day rolls around, remember that for some children and some young adults every mass adoption ceremony, every treacly feature story on the local news is an act of cruelty – ripping the scab off a wound that never fully heals. 

Again, that doesn’t mean adoption by strangers and termination of parental rights are always wrong.  But it needs to be moved much farther down on the list of options for children.  And while, on rare occasions, we still need to impose child welfare’s death penalty, can’t we at least have the decency to stop celebrating it? 

NCCPR news and commentary round-up, week ending November 17, 2022

Before the news, a reminder about an important virtual meeting tomorrow (Nov. 18): 

The New York Advisory Committee to the U.S. Commission on Civil Rights is hosting a series of public briefings to examine the extent to which racial disproportionalities and disparities exist in the New York child welfare system and its impact specifically on Black children and families. You can register for the first meeting here. 

And now the news: 

● Decades ago, NCCPR’s founder, the late Betty Vorenberg, resigned from the National Board of the American Civil Liberties Union because of the national ACLU’s failure to understand that family policing is a civil liberties issue.  That began to change last year, when they took a skeptical look at predictive analytics in “child welfare.”  And now, it’s clear, the ACLU gets it.  Today (Nov. 17), together with Human Rights Watch, they released this outstanding, comprehensive report on the racial and class biases that permeate family policing.  The report's author, Hina Naveed, will discuss it at a webinar on Nov. 21.  The report includes this video:

● In the case of Chapin Hall at the University of Chicago, they didn’t just ignore what family policing was doing to families, they spent decades actively undermining efforts to keep families together – including leading efforts to deny the role of racial bias.  So while this slide deck summarizing the research on how poverty is confused with neglect, and how even small increases in income dramatically reduce what agencies label “neglect” is useful – it would be better had it been accompanied by an apology. 

● In contrast, the Center for the Study of Social Policy did sort of apologize for some of its earlier work on the so-called Adoption and Safe Families Act, in this commentary calling for repeal of ASFA. 

● Just as the Indian Child Welfare Act is the gold standard for “child welfare” law (or would be if it were enforced) the work of Rebecca Nagle, producer of the This Land podcast,  is the gold standard for ICWA journalism.  Last week, as the Supreme Court heard a challenge to ICWA, Nagle had important stories in The Nation and The Atlantic. 

● Julia Lurie of Mother Jones spoke to Nagle for this overview of the Supreme Court case – and the special interests behind the effort to overturn ICWA. 

● In Slate, Michele Kriegman writes that The Supreme Court May Ensure Native Kids’ Ancestry Is Erased—Just Like Mine Was. 

● From NCCPR President Prof. Martin Guggenheim's keynote address to the last Kempe Center conference - reprinted in The Imprint:   

I’m here to tell you that family regulation has nothing at all to do with child welfare, it is entirely about the subordination of poor communities and, particularly, poor communities of color. 

● Add one more to the long list of parents against which the family policing system discriminates: parents who are, themselves, foster youth.  One such parent, Katelyn Owens, writes about her experience in The Imprint. 

● In Michigan, state judges are all upset over a “placement crisis” in child welfare.  In Bridge Michigan, I write about how it’s those same judges who are causing the “placement crisis.” 

● One judge who does understand is the Chief Justice of the Michigan Supreme Court.  As she prepares to retire from the bench, Justice Bridget McCormack wrote a stunning dissent that’s actually a call to transform “child welfare” in Michigan – and everywhere else.  I have a blog post about it.  And see also this story in The Imprint. 

● A key step toward transforming "child welfare" involves a federal law that will be 25 years old on Saturday.  Prof. Sarah Katz, Director of the Family Law Litigation Clinic at Temple University, writes in the Philadelphia Inquirer that "A federal law has beendestroying families for 25 years. Let’s get rid of it.  I agree with the growing consensus that we should mark the anniversary of the Adoption and Safe Families Act by repealing this harmful, discriminatory law for good."

● I agree, too. NCCPR's commentary in the Albany, N.Y. Times Union is called "This law was supposed to protect kids from abuse. It hasn't."

● And in Reason, longtime family defender Diane Redleaf writes: "The Adoption and Safe Families Act Takes Kids Away From Loving Parents" 

● Think the residential treatment industry can’t sink any lower? Then let this sink in: A residential treatment center in Connecticut is blaming an 11-year-old girl for being assaulted by another resident.  CT Mirror reports that, in response to a lawsuit from the girl’s adoptive parents, the RTC says: 

“The plaintiff’s injuries and/or damages were caused, in whole or in part, by the negligence and carelessness of the minor plaintiff,” the defense reads. 

There’s much more in the story but also, as is so often the case with these stories, something missing: Why was an 11-year-old institutionalized in the first place?  No, wait, this time it’s even worse.  This was the second time this child was institutionalized. The first time was when she was no older than age 6.

● You may recall the outstanding Associated Press story about the U.S. soldier who decided he wanted to keep an Afghan baby for his very own.  The headline was “Afghan couple accuse US Marine of abducting their baby.”  I have a post about it with a link to the full story.  It turns out, the New York Times Magazine was doing its own in-depth investigation of the same case.  That story adds additional detail. 

● From WGLT public radio in Illinois: Another story about the enormous harm done to a family by a “child abuse pediatrician.” 

● And as you read all those treacly “adoption day” stories next week, don’t forget this case, in which it is not at all clear the children ever needed to be taken in the first place.

A child welfare case leads to a stunning dissent from Michigan’s Chief Justice

More than just a dissent in an individual case, this opinion is a call to transform “child welfare” in Michigan – and everywhere else. 

Michigan Supreme Court Chief Justice Bridget McCormack

The Chief Justice of the Michigan Supreme Court, Bridget McCormack, has written a dissent in a case involving termination of a child’s rights to her parents (a more accurate term than termination of parental rights).  Justice McCormack is retiring, and what may be her final opinion in a family policing case goes well beyond any one case.  It is a brilliant dissection of the failings of both law and practice in “child welfare” in Michigan and pretty much everywhere else in America. 

As far as the case itself goes, the best thing Michigan’s family police could have done was offer some strictly voluntary help to the mother and go away.  The second best thing they could have done was -- nothing at all.  The case began in 2017 with the child at its center living with friends of the mother, while the mother coped with traumas in her own life.  Five years later, the child remains there.  But with two differences: 

First, thanks to the interference of the family police, the child, the mother and the friends all were put through a wringer.  The adults had to endure jumping through one meaningless hoop after another and the child endured the torment of years of court proceedings and uncertainty.  

Second, the child no longer has any legal right to see her mother, with whom she has remained very close.  If there’s ever a falling out with the friends, who were forced to become licensed foster parents, or if the family police simply so decree, all contact between mother and child can be cut off. 

As Justice McCormack wrote in her dissent: 

How would this case have turned out if, rather than admonishing the respondent-mother for failing to secure a legal guardianship (a process that’s confusing and not common knowledge to every new parent who might call on friends and family to help), the court had simply helped her set one up? … 

McCormack called the case 

both tragic and frustratingly commonplace. A mom expressed a strong interest to remain a part of her daughter’s life. Her daughter expressed a similarly strong interest to see her mom. And yet the best our legal system has to offer them is a complete severing of their legal relationship, with no consideration of creative solutions that would benefit the whole family. I wish this case was an outlier. But in ten years reviewing records in termination cases, I have seen many just like this where our statutory process for protecting children has failed them. 

McCormack didn’t stop there.  She went on to critique every stage of the process. 

This particular case was unusual in that the child already was living with the family friends.  Most cases begin with what McCormack rightly characterized as “the forcible removal of the child from the home.” She then raised an issue that’s been a theme of this Blog since it began 16 years ago: balance of harms. She writes: 

While courts must consider whether “[t]here is reasonable cause to believe that the child is at substantial risk of harm” with their parents, there is no requirement to consider the “substantial risk of harm” from removal, despite the clear evidence that removal has lasting negative effects on a child’s mental and physical well-being into adulthood. 

The harms of removal and sometimes also foster care can produce “worse long-term outcomes than if the child had remained at home” in many cases … But Michigan’s removal statutes do not require courts to balance these harms against the harm that might result from staying home. 

In contrast, McCormack wrote, when Washington D.C. courts adopted a rule requiring balance of harms, entries into foster care decreased sharply. 

McCormack went on to note the double standards in law concerning the obligations of the state and the obligations of a parent forced to jump through whatever hoops the family police put in her way. 

In this case, she wrote, 

From the point of court involvement to the final hearing, the respondent-mother made immense progress toward the goals laid out by [the Michigan Department of Health and Human Services] in her agency treatment plan. She found housing, got a job, took classes, left a toxic relationship, found a therapist, and began taking her medication. But because she had not convinced the court that she was stable enough in these accomplishments on the day of the termination hearing, she lost the chance to continue improving. … 

Raising a child is difficult, even when there is no crisis. The statutes governing termination proceedings require only “reasonable” efforts—not perfect efforts—from DHHS to reunify the family. And yet, we often require parents to meet each requirement with near perfection. Should any obligation in a court’s order not be completed, a parent can lose their legal rights to their child. 

In the respondent-mother’s case, the trial court terminated her parental rights for two reasons: her ongoing efforts to manage her mental health and a decision to drive to court with a suspended license. The substantial progress the respondent-mother had made toward rectifying the conditions that led to court involvement in her family didn’t matter.  And whether external factors, like poverty, contributed to her decision to drive to court without a valid license was not relevant either. The court seemed to want a perfect parent, not a reasonable parent. 

McCormack also explained that Michigan law allows termination when “the conditions that led to adjudication continue to exist.”  But in some cases, correcting such conditions is, literally, impossible. 

In this case, McCormack writes, the court that terminated the child’s rights to her mother 

cited the respondent-mother’s initial choice to place [the child in an informal guardianship while she looked for housing. And it also cited the respondent-mother’s own upbringing, concluding that she did not have a “personal foundation to apply to her own parenting.” … It said she had a “history of giving birth to children and relying on others to raise them when she could not cope.” To remedy these historical experiences, the respondent-mother would need a time machine. 

I would only add a question: Does that latter standard mean that the Michigan family police will start investigating every family in Bloomfield Hills with a live-in nanny? 

McCormack dissects how the broad, vague concept of “best interests of the child” is easily subject to the whims and biases of agencies and courts. 

This isn’t a new observation, which makes it all the more frustrating. In 1977, then [U.S. Supreme Court] Justice Brennan noted that the “best interests” standard’s open-ended nature allowed “social workers of middle-class backgrounds, perhaps unconsciously, . . . to favor continued placement in foster care with a generally higher-status family” because of a “bias that treats the natural parents’ poverty and lifestyle as prejudicial to the best interests of the child.” 

McCormack goes on to point out solutions, some of which may require statutory changes, but most of which do not, starting with not confusing poverty with neglect.  And she concludes with a warning, that’s also been a theme of this blog: 

There are, of course, cases of neglect or abuse where children should not remain with their parents. But when a child welfare system spends too much time investigating, monitoring, and adjudicating families that do not require court intervention, these serious cases can slip through the cracks. 

So now consider again the five years spent traumatizing this child and harassing both her mother and the friends who had taken the child in.  What case slipped through the cracks in the meantime?

NCCPR in Bridge Michigan: Judges can — and must — solve Michigan’s child placement crisis

Amid all the concern over children in the child welfare and juvenile justice systems forced to endure makeshift placements — some even shipped more than a thousand miles away — Michigan has lost sight of the real causes of the problem. As a result, everyone from the state’s probate judges to the Michigan Department of Health and Human Services pursue solutions that will make things worse.

At the root of the placement crisis is the fact that Michigan tears apart so many families needlessly. The typical cases seen by DHHS caseworkers are nothing like the horror stories. Far more common are cases in which poverty is confused with neglect. In Michigan, 17 percent of children were thrown into foster care because their parents lacked adequate housing — that’s more than were taken because of physical abuse. … 

Read the full column in Bridge Michigan