The child welfare surveillance state: When the school bullies include the School Board President

● A Pennsylvania school district sent letters telling parents if they didn’t pay overdue bills averaging $22 each, their children could be placed in foster care.  They backed down when even the child protective services agency objected.

● But there is nothing unusual about a school district “weaponizing” CPS for its own convenience – because politicians and CPS agencies have spent decades encouraging it.

 

The Wyoming Valley West school district in action?
Drawing by Pimkie

We all know the classic story about the school bully who threatens to beat up little kids if they don’t give him their lunch money.  But what do you do when one of the school bullies is the president of the school board – and the threat is far more dire: A letter to parents warning that if they don’t pay up, their children might wind up in foster care.

You probably know the story by now.  But it’s important to understand the context.  

There is nothing unusual about school districts using child protective services agencies as a weapon. It happens because we allow it to happen. Half a century of horror stories that bear no resemblance to what CPS agencies typically see, combined with politicians trying to score points by “cracking down on child abuse” have led us to this: a child welfare surveillance state where everyone is under constant suspicion and CPS is the weapon of choice for all sorts of bureaucratic bullies. 

 ICYMI: Here’s what happened in Pennsylvania

The bullying that made headlines across the country is from the Wyoming Valley West school district in Luzerne County, Pa.

More than three-quarters of the students are considered “economically disadvantaged.”  Some of their parents had fallen behind in paying for their children’s school lunches.  About 1,000 students owed a total of $22,467 – an average of $22.47 per student.

What’s a school district to do?  Isn’t it obvious? Send out a letter to parents warning that if they didn’t pay up, their children might be taken away.  The letter reads like the text of those scam phone calls meant to dupe people into thinking they’re about to be arrested by the IRS.

But this letters is real.  It says:

“Your child has been sent to school every day without money and without a breakfast and/or lunch.  This is a failure to provide your child with proper nutrition and you can be sent to dependency court for neglecting your child’s right to food.  If you are taken to dependency court, the result may be your child being removed from your home and placed in foster care. ... [P]lease remit payment as soon as possible to avoid being reported to the proper authorities.”

The letter was sent by the district’s Director of Federal Programs, Joseph Muth.  They were staunchly defended by the School Board President, Joe Mazur.  According to the Wilkes Barre Times Leader:

Mazur insisted the letter “certainly did the job” in generating responses. “We took a drastic measure. It probably wasn’t very popular, but it never is when you try to collect payment.”

Well, yes. Kidnapping the children and holding them for ransom also would have done the job.  Was that going to be the next step?

To his credit, the board vice president was appalled.  But the district’s lawyer – who wrote the letter – was practically gloating about it to television station WBRE:

The cruelty of the letters is mind-boggling – and so is the ignorance of the school board president and administrators. They have no clue concerning the enormous trauma a child abuse investigation inflicts on a family – even when it doesn’t lead to foster care placement.  (If they do know and did it anyway, then it’s even worse.) Apparently they also had no problem with the prospect of calling in scores of false reports, stealing caseworker time from finding children in real danger.

School officials and school board members should know better than most about what can traumatize a child, and the need to avoid inflicting such trauma. Those who don’t understand this don’t belong in jobs dealing with young people.

Even cps couldn’t stomach it

You know what you’re doing to families is inexcusable when even the child protective services agency won’t make excuses for it.

"Our agency was weaponized to terrorize children and families and that's something that's just unacceptable," Joanne Van Saun, the executive director of Luzerne County Children and Youth Services told WOLF-TV. "We want to support families and maintain families whenever possible." 

(The data, show that they’re not fully living up to that claim. Luzerne County takes away children at a rate 20 percent above the national average and five percent above the state average, even when rates of child poverty are factored in. But the county has been steadily improving in recent years - and at least they don’t want the school district to make things worse.)

After Van Saun and County Manager David Pedri wrote a letter to the school district demanding that it “cease and desist from making these representations” the district backed off. They plan to send letters of apology to the families.

While that should be what we expect from such child protective services agencies; sadly, it’s unusual.

I suspect that, while most CPS agencies wouldn’t have endorsed what the school district did, they wouldn’t condemn it either – since their party line is report! report! report!  Call in with anything and everything, no matter how absurd, they say, and let our “professionals” decide. 

In Philadelphia, for example, 114 miles away, the head of the city’s Department of Human Services reportedly tells people to just “follow their intuition” when deciding whether to call in a report. Late last year New York City’s Administration for Children’s Services decided that, what with families getting together for the holidays this was a great time to try to ratchet up their suspicion of each other.

And school officials can hide behind “mandatory reporting” laws that require them to report their suspicions.

That’s why there’s nothing unusual in the school district’s behavior.  There is, in fact, no penalty for a school district for weaponizing CPS.   In June, Searchlight New Mexico reported on how child protective services was weaponized by a school district in that state to bully a parent when she complained that her children were being bullied.  And last year, HuffPost and The Hechinger Report documented the extent of the problem nationwide.

Half a century of horror stories

After 50 years of building a child welfare surveillance state, it’s no wonder one study found that over the course of their childhoods one third of all American children – and more than half of African-American children – will have to endure a child abuse investigation, almost always due to an allegation that turns out to be false.

The corrosive effect on all of us was explained well in this courageous tweet thread from a family defense attorney.

Sen. Bob Casey has spent
years stoking fear and hysteria
about child abuse. Now that it's
backfired in a particularly obvious
way, he claims to be outraged.

Among the worst offenders in all this: U.S. Sen. Bob Casey, D-Pa.  In 2011, he tried to score political points off of the notorious Penn State sex abuse scandal involving former foster parent and group home operator Jerry Sandusky by introducing legislation that would have turned every American into a mandated reporter of child abuse – even though there is not a shred of evidence that mandated reporting actually curbs child abuse, and even former proponents of mandated reporting have become skeptics.

Now, when the atmosphere of fear and paranoia he helped stoke backfires in a particularly obvious way, he rushes out a tweet condemning the school district.

Preventing further damage

Preventing further damage requires far more drastic action than simply telling a school district they should stop using CPS as a weapon to get their hands on lunch money.  Here are some crucial steps (supporting data and scholarship are available in NCCPR’s Due Process Agenda).

● Put teeth into laws making malicious false reporting illegal.  It should be made a criminal offense. That is currently the case only in a few states, including Pennsylvania. But such laws can’t be enforced until we …

● Replace anonymous reporting with confidential reporting.  That is, under most circumstances the accused would not know who made the report, but the CPS agency must be given a verifiable name and contact information.  Otherwise there is no way to enforce penalties for false reporting. 

Anonymous reports are, by far, the least reliable – and people who refuse to report even confidentially are likely to be less reliable still.  The fear mongers say banning anonymous reporting would lead to some real abuse being overlooked.  But we overlook far more such abuse now – when anonymous false reports deluge CPS agencies so they don’t have time to find children in real danger.

● Go in precisely the opposite direction from that proposed by Sen. Casey – abolish mandatory  reporting and allow professionals to use their professional judgment concerning when to report – judgment that is likely to be superior to that of an underprepared, undertrained, overloaded CPS caseworker. 

● Public information campaigns need to change from fear-based calls upon people to report based on “intuition” to education on what to report and what not to report. They also need to explain the consequences both of failing to report when there is reasonable cause to suspect abuse, and the harm that can be done by reports based on “intuition” or “gut feeling.”

Perhaps then fewer children will be threatened for their lunch money – by their own schools.

News and commentary round-up, week ending July 16, 2019

● In a brave and important tweet thread Amy Mulzer, an appellate family defender in New York City, writes about being a parent in an age of constant surveillance by child protective services agencies. Some excerpts:

Rationally, I know that I have all the privilege in the world, and that what happens to my clients is incredibly unlikely to happen to me.  But despite that, I am so anxious and feel so watched and judged after seeing everything that happens to my clients and the judgment they receive from workers, judges, attorneys, and foster parents, that I am having a hard time holding the line on what I know is right for my kid.

And what that leads me to is this: Imagine what it is like to parent in this city as a low income parent of color who IS in fact likely to have ACS called on them if someone doesn’t agree with their actions or circumstances? Imagine having to run everything through that filter? …

And a postscript:

The funny thing is that it would ABSOLUTELY be better for my son if I did not know the worst case scenario. I would be a better, more confident parent that way. And, similarly, so would many others.

● Among the worst failings of the child welfare system is when it punishes the children of battered mothers by taking them away and charging the mothers with “failure to protect.”  But in Oklahoma it can be even worse.

● The execrable HBO documentary Foster presented the Disney version of how people in the Los Angeles County child welfare system do their jobs.  In this column, a caseworker for the L.A. Department of Child and Family Services offers a reality check.

● In this NCCPR Child Welfare Blog post, I offer a word of advice to those writing puff piece op-eds about the joys of residential treatment: You probably shouldn’t cite a for-profit company that was the subject of exposes concerning allegations of widespread abuse at one of its institutions – and abuse allegations plus a riot at another.

● Though New York City has gotten most of the attention, Washington State also has embraced high-quality family defense.  This story looks at both.

● The Minneapolis Star-Tribune interviews family defender Diane Redleaf about her work helping families who want to let their children have normal childhoods fight child protective services agencies.

● There is an increasing realization that the failings of the child welfare system have a lot in common with the failings of the criminal justice system. So it’s worth looking again at this 2018 column from Chris Gottlieb, co-director of the Family Defense Clinic at New York University School of Law.

Before you believe a column claiming that residential treatment is wonderful – read the “sequel”

A word of advice to those writing puff piece op-eds about the joys of residential treatment: You probably shouldn’t cite a for-profit company that was the subject of exposes concerning allegations of widespread abuse at one of its institutions – and abuse allegations plus a riot at another.

Clarinda Academy, the "flagship" institution run by Sequel Youth and Family Services
(Photo from Disability Rights Washington.)

Well, I suppose they deserve credit for chutzpah.

There’s a column in the Chronicle of Social Change about the joys of what is probably the single worst intervention in child welfare – residential treatment.  The column cites no actual evidence that residential treatment works – because there is none.  Even the former head of a trade association that includes such providers admitted that “we find it hard to demonstrate success.”

Instead the column gives us a single anecdote, and the usual boilerplate about how supposedly nothing else works for some children so we should spend a lot more money on these places, blah, blah, blah.

The column was coauthored by Susan Dreyfus, the current head of another trade association for residential treatment centers and other providers, and Elizabeth Carey, CEO of Starr Commonwealth, which runs – of course – residential treatment centers.

But here’s what sets the column apart:  The youth in that one anecdotal success story achieved his success, the column claims, “[w]ith the help and support of residential behavioral health treatment provided by Sequel Youth and Family Services …”  The author’s note at the end of the column explains that Carey’s RTC “partners with Sequel Youth and Family Services, a behavioral health provider across the nation.”

If you’re thinking “Sequel – that name rings a bell…”  it should. 

Sequel in the news

Sequel, a for-profit chain of residential treatment centers, has been in the news a lot lately – over allegations of widespread abuse at one institution, and a riot at another. They run the institution where, according to one resident, you can be punished for trying to wipe away a year.

It began when Disability Rights Washington issued a scathing report on what news accounts call Sequel’s “flagship institution,” Clarinda Academy in Iowa.  What DRW alleges is appalling.  There’s a summary, with a link to their full report, here.  Sequel denies the allegations in the report.

The DRW report got NBC Nightly News interested. Here’s whatthey found :

Then, Nightly News broadcast a follow-up story:

At another Sequel facility, Red Rock Canyon school in Utah, a SWAT team had to be called in, guns drawn, to quell a riot.  

The riot may have been just the tip of the iceberg.  Just yesterday, the very day the Chronicle pubished the op-ed praising Sequel, a story in the Salt Lake Tribune ran under this headline: “After a riot, increasing violence and now sex abuse allegations, Red Rock Canyon school will close.” (Sequel says they decided to close the school voluntarily.) UPDATE, JULY 15: Sequel is reportedly closing a second facility in Utah as well, though the company claims they may "repurpose" this one.

But even if no child ever was physically abused at a Sequel facility, even if had there never been even one riot, that still wouldn’t be enough to justify such places’ existence.  Even the executive director of the group that calls itself Children’s Rights (A group that is not exactly family-friendly) Sandy Santana, told NBC that children should not be institutionalized – period. Said Santana:

“A well-functioning system places kids in families and wraps around supports … to keep those kids in families.”

But hey, not all the news for Sequel is bad. Last year, Investigate West reported that “A private equity firm acquired a majority stake in Sequel last year, citing ‘tremendous continued growth opportunities.’” 

So, to review: On the one hand there is an overwhelming body of actual evidence that residential treatment doesn’t work, and there are far better alternatives – evidence summarized here.

On the other hand the head of a child welfare agency trade association, and the head of a residential treatment center that proudly partners with Sequel Youth and Family Services say they’re wonderful.

News and commentary round-up, week ending July 9, 2019

● What is it like to be innocent, yet trapped on a massive blacklist of alleged child abusers? What does it do to a family? It happened to Hope Lyzette Newton.  She fought her way off the blacklist. She tells her story in this essay from the Rethinking Foster Care blog.

● Another moving essay comes from Kelly Buffalo-Quinn, a Native American woman who writes: “I Lost Control of My Baby’s Adoption Because of the Indian Child Welfare Act. And I’m Glad It Happened.”   An excerpt:

We are the originals and it’s laws like ICWA and decisions like my Tribal Council’s that protect our bodies, our descendants, our language and our way of life. The preservation of indigenous cultures is the only reason we have survived for so long. Continued preservation is the only way we will keep surviving. … It took me years to come to terms with, but ICWA did its job. It preserved this native child just as it was intended. And because of that, I know he will always have a home — a true home — in his a place among my people.

 You can see Ms. Buffalo-Quinn tell her story in this video:

 ● On this blog: Last month the head of New York City’s child welfare agency, the Administration for Children’s Services, told a City Council hearing that they didn’t have aggregate data on the use of psychiatric medication on foster children.  He said that was some other agency’s job.  What he apparently didn’t tell the Council is that, more than ten years ago, the New York State Office of Children and Family Services urged – but did not require – ACS and its upstate counterparts to gather and track these data themselves.

● Still, one can always feel better about child welfare in New York City by looking at child welfare in Philadelphia. Here’s another case in point.

Hey, ACS: It’s 10pm. Do you know where your overmedicated foster children are?

More than ten years ago New York State recommended that New York City’s child welfare agency, the Administration for Children’s Services, and its counterparts Upstate, collect data about the use of potent, sometimes dangerous psychiatric medication on foster children.

Last month, ACS admitted it doesn’t do that. 

One of the many reasons foster care is so harmful for so many children is that it dramatically increases the risk that they will be doped up on potent, sometimes dangerous psychiatric medication.  The harm this does to children has been documented over and over, most recently in this outstanding series by investigative reporter Karen de Sa.

The reason it happens is simple: Nobody who loves the child can stop it.

If an agency or a foster parent, or especially a group home or institution, finds that a child is being too difficult, they can just give them pills or shots. It’s often terrible for the children, but it makes the adults’ life a whole lot easier.  Parents can object, but child welfare agencies usually are free to order such medication anyway.  (Sometimes they may need a judge’s approval, but judges don’t love children they don’t know either.)

What’s love got to do with it?

The role of love in the equation can be seen in the comprehensive data that Florida has kept for more than a decade.  When children are placed in foster care with relatives – kinship foster care – they are vastly less likely to be given psychiatric medication.  Why? Because someone who loves a child will put up with more “problem behavior” than someone who doesn’t.

Florida learned this thanks to one of the most visionary leaders in child welfare, the late George   when he ran the Florida Department of Children and Families he was appalled by the overuse of such medication. But Sheldon realized that simply getting consent forms rubber- stamped, shoved into individual files and put at the back of a file cabinet wasn’t enough.  He established a comprehensive database to track how every provider in the state was performing (foster care in Florida is overseen by regional private “lead agencies”).  The database tracks use of these meds by age, by gender by race and, as noted above, by placement type.

Sheldon.

Even as most of Sheldon’s other reforms were undermined by subsequent administrations and, especially, by the demagoguery of the Miami Herald, the database has remained – and it’s contributed to significant progress: a 30 percent decline in the proportion of foster children who receive these medications since the first report was issued a decade ago.

New York lags behind

In New York State, the City of New York and individual counties run child welfare, with some oversight from the New York State Office of Children and Family Services (OFCS). Even before Sheldon ordered the database in Florida, OFCS was recommending that the City and the counties do something similar.

In a memo dated Feb. 13, 2008, OFCS said:

A quality assurance plan is recommended to monitor the use of psychiatric medications in the out-of-home population. Agencies and districts are encouraged to develop a plan to obtain aggregate data on the use of psychiatric medications for children in their care … and routinely review samplings of individual records. Any concerns should be addressed through a process of continuous quality improvement.

Unfortunately, it was only a recommendation, not a directive.  Local agencies were free to ignore it.  And that appears to be what the New York City Administration for Children’s Services (ACS) has done.

It’s not that they didn’t get the memo.  As recently as last year, a draft document proposing revisions to procedures concerning psychiatric medications makes reference to the existence of the memo – it even includes a link to the memo.

But though the ACS draft talks a lot about private agencies providing data about individual cases, there is no mention of creating a database to aggregate data to detect patterns and trends and see if ACS is making any progress in reducing the overmedication of foster children.

Worse, at a City Council hearing, ACS Commissioner David Hansell acted as though he couldn’t even get the data.  According to the Chronicle of Social Change:

“Currently, ACS does not have access to the data that the council is requesting, but we are advocating for access,” said[ACS Commissioner David] Hansell, who explained that the data is collected by the state’s Medicaid program within the Department of Health. “Once we have access to the information in this system … we believe that we would have much of the information the city council is looking for.”

Is it really that hard?

But OCFS made clear more than a decade ago that agencies like ACS should be aggregating the data themselves.  How hard can it be?  How about just going through the individual files and counting?  As I said in a previous post on this topic, ACS wants to be trusted with a predictive analytics algorithm to target families.  But why should we trust ACS with big data if it can’t even handle the ultimate in small data – simple addition?

In fairness to Hansell, he’s probably not the only ACS commissioner to fail here.  At the time the state memo was written, OCFS was run by Gladys Carrion. She established a strong record as a reformer – so strong that when he first took office in 2014, New York City Mayor Bill de Blasio named her to run ACS, where she did a far better job than Hansell has done.  But de Blasio forced her out because he needed a scapegoat after a high-profile tragedy.  He replaced her with Hansell.

I don’t know what, if anything, Carrion tried to do about this when she was running ACS.  Perhaps she tried and was stymied by the bureaucracy.  Or perhaps she never tried to follow her own advice.

But that’s no excuse for not following it now.

The City Council should pass legislation demanding that ACS compile the database.  And OCFS should turn its recommendation into a directive.

News and commentary round-up, week ending July 3, 2019

● The most interesting news of the past week is Prof. Robert Latham’s findings about the Florida CASA program.  He found that, using the program’s own criteria for measuring success, there is no evidence that the program does any good, and some evidence that it may do harm. (This is on top of a wealth of other evidence that CASA is harmful.) The Florida program has descended to using the worst kind of fearmongering to keep itself in business.  I have two blog posts about it. This link goes to part one, and includes links to part two and to Prof. Latham’s full analysis.

● But there is an intervention that does work: high-quality defense counsel for families. NCCPR President Martin Guggenheim has written two articles on the latest study to demonstrate this, one for Child Law Practice Today, (co-authored with Susan Jacobs), a publication of the American Bar Association’s Center on Children and the Law, the other for Children’s Bureau Express, a publication of the federal Administration for Children and Families.

● In The Hill, Charissa Huntzinger, a policy analyst for the Center for Families and Children at the Texas Public Policy Foundation, has an excellent overview of the harm of needless removal and a timely reminder that “Removing children from their parents doesn't just happen at the border.”

● In San Diego, activists are demanding a seat at the table – literally – on a new advisory board, in order to ensure that the county child welfare system addresses the issue of racial bias.

● The child welfare system in Canada is depressingly similar to the one in the United States.  Brielle Morgan, a reporter for The Discourse, has done outstanding reporting on the failings of that system.  This story zeroes in on the confusion of poverty with “neglect.”  As one of those interviewed put it: “When they remove children from a family in a home and put the child into another home, they pay that family a substantial amount of money to look after these children. Why didn’t they just take that money they were going to pay to foster care into the family and put preventative measures and family supports into place — so that that family unit can stay together?”

● And check out this speech, in which Jerry Milner, acting commissioner of the federal Administration on Children, Youth and Families, calls for changing what child welfare does, how we pay for it, and even how we talk about it. (It’s worth sticking around for it all, it gets better as it continues):

Jerry Milner: Closing Remarks from CANTASD on Vimeo.

A CASA program’s new low

The program tries to save itself with fear and smear tactics. And the program director knows better.

 

Some CASA programs still call themselves "a child's voice in court."
But often the CASA model of representation actually silences the child
(Photo by Elvert Barnes)

Second of two parts. Read Part One here.

In the previous post to this blog, I described a new, large-scale analysis of data from what is probably the nation’s premier CASA program – the one in Florida (where it goes by the name Guardian ad Litem (GAL) program).

The study found that, even after pouring $600 million in taxpayer funds into the program over 15 years, using the criteria the program itself uses to claim success, there actually is no evidence that the program does any good – and some limited evidence that it might be doing harm.

The study was done by Prof. Robert Latham, associate director of the University of Miami School of Law Children and Youth Law Clinic. He is not a CASA-basher. On the contrary, he worked in the Florida GAL program, began his excellent blog with posts defending that program and, as recently as 2016, received the program’s Excellence in Advocacy award.

But what started him wondering about the program’s effectiveness was the depths to which it has sunk to try to keep itself in business and prevent the establishment of a better way to represent children.  The “better way” part is my conclusion. Prof. Latham sees room for both.

The two methods generally are called “best interests” representation and “client-directed” representation, sometimes called “expressed wishes” representation.

In the “client-directed” model, the lawyer does what any other lawyer would do: advocate for what his or her client wants.  In the so-called “best interests” model preferred by CASA, the lawyer advocates for whatever the CASA happens to think is in the child’s best interests.  If the CASA and the child disagree, the child is effectively silenced.  (And that makes it particularly galling that some CASA programs still claim to be “A child’s voice in court” – often they are anything but.)

And now we know that the Florida CASA program (again, they call it a GAL program) will use all sorts of fear and smear to keep it that way.  In one email, the program’s leadership declared that the goal of those who favor allowing children to have someone in court fighting for what they actually want

“… is not improving safety or representation of children, but rather to change the manner of representation so that all children – even newborns - - have expressed wishes representation, including attorney-client privilege, confidentiality, and the child directs the lawyer to the goals of the advocacy.”

Translation: How horrible! Some people want to give children actual legal rights! We can’t let children have a real voice in court!

But here’s the kicker. The email continues:

Under this scheme, children could be hurt because, as we know, most children want to return to their abuser.

As Latham aptly puts it: “I thought we were past the days when … program leadership and their friends accused children’s attorneys of wanting kids to die.  And yet here we are.”

Oh, and that line about “even newborns” is just another sleazy scare tactic. The American Bar Association offers exhaustive guidance concerning how to deal with any situation where a child really can’t express a preference – and where an expressed preference can cause the child “substantial harm.”

Then came what Latham describes as “Another letter, another claim that attorneys for kids will stand by as children are murdered in the damn streets.”  That email concludes:

For those children who are able to understand how to direct an attorney, most will make decisions to return to their traumatic situation, which is clearly not in their best interest.

There are several specific problems with these emails:

● First, most children are not taken from “abusers” in the first place; they are taken from parents accused of neglect, which often is confused with poverty.

● Second: Whether its abuse or neglect, the operative word is accused. Children can be trapped in foster care for months before a court ever decides if they actually were abused or neglected or not.  It speaks volumes about the Florida CASA program that their email effectively adopts the position that all families are guilty until proven innocent.

● And third, as Latham points out: “Kids don’t decide to go home – judges have to order it.” [Emphasis in original.]

It should be obvious that the best way for a judge to actually decide what to do is when all sides have someone making the best possible case for what they want.

These emails aren’t just damaging concerning the specific issue of legal representation for children. They contribute to the climate of fear that has led to foster-care panic in Florida. Indeed, these memos sound like they could have been by the Miami Herald, whose demagoguery about child welfare derailed reform that was making children safer and plunged the Florida child welfare system back into its usual state - chaos.

A hypothetical case …

Latham does a good job of explaining the differences in the two approaches in a hypothetical case in which the child is in foster care and wants to go home:

In the best interest model, the GAL investigates the situation and comes up with a position. If the GAL decides that reunification is not their preferred path, then the GAL attorney makes no further efforts and waits for the parent to fail. Alternatively, a GAL could actively thwart the family’s efforts at reunification by filing motions to limit visitation or to pile on extra services.

Notice how Latham understands that “extra services” can actually be a way to undermine families, by forcing them to jump through a bunch of additional, meaningless hoops – something to keep in mind when CASA programs claim they’re successful because families supposedly get “more services.”

Latham continues:

In the direct representation model, on the other hand, we start with the position of the child. If the child wants to pursue reunification, then the attorney must take steps to try to make reunification possible. The law requires the home to be safe, so the attorney aims to make it so. That could include seeking services for the parents, holding the Department [of Children and Families] accountable if it doesn’t make reasonable efforts, filing injunctions to get abusive people out of the home, and a lot of other efforts to try to meet the legal standard.

The client-directed attorney must also communicate with her child client and counsel her about the likelihood of success and other options. Maybe the child changes her mind about going home at some point; maybe the parent is never able to create a safe home. The client-directed attorney may never achieve the client’s goal and reunification may never happen.

The difference in the two models is that the directed attorney’s efforts are proportional to the child’s desire to go home, while the best interest advocate’s efforts are proportional to their own value system and beliefs (which none of the other parties or even the judge has any way of really exploring).

The attorney providing direct representation to a child cannot lie to a judge, withhold information on known harms in a way that is tantamount to fraud on the court, or pick up children and throw them into burning houses. If a child’s attorney does any of that, please report them to the Bar.

…and a real case

 

But one doesn’t need a hypothetical to see the harm in the CASA-knows-best approach.  The Washington State Supreme Court recently upheld a state law that says judges have discretion to give children their own lawyers, or not, as they see fit.  In her dissent, Justice Mary Yu cited a real case. As I explained in a previous post to this blog:

The child, known as E.H., is now about ten years old, more than old enough to make his preferences clear. His mother is in jail, but will be released next year. Justice Yu writes:

E.H.'s position was (and remains) directly at odds with the position of his CASA and the State: E.H. wants to reunite with his mother, while the CASA and the State argue that termination of parental rights is in his best interests. When the court denied appointed counsel … E.H. was erroneously deprived of his right to be heard.

Although E.H. cannot reunite with his mother right now, she is scheduled to be released in July 2019, when E.H. will still have almost half of his childhood ahead of him. In the meantime, he is in a stable placement with foster parents who are willing to serve as long-term guardians for him. He has maintained a close relationship with his mother, and she has made every possible effort to remain an important part of his life. …

E.H. thus has a clearly stated position favoring reunification, and there is no apparent reason why that outcome is not a reasonable possibility in accordance with the law of this state. [Emphasis added.]

Justice Yu goes on to dismantle the first line of defense used by CASA to justify refusing to fight for what the child wants, which boils down to  “Well, we do mention to the judge what the child wants”:

The trial court noted that the CASA, though "somewhat leery," reported E.H.'s stated position to the court in accordance with her statutory duty. … However, the position of the State and the CASA, that termination is in E.H.'s best interests, directly conflicts with E.H.'s stated desire to reunite with his family.

The CASA is required to represent and advocate for termination in order to comply with her statutory duties, but termination and reunification are mutually exclusive outcomes. … No one could possibly advocate for both at the same time. The CASA's assessment of E.H.'s best interests therefore make it impossible for her to represent his position.

It gets weirder.  Justice Yu points out that the CASA actually had a lawyer to argue for the CASA’s position – that E.H’s rights to his own mother should be terminated -- yet E.H. had no lawyer to argue for what he actually wants - reunification.  The same thing happens in Florida – and the Florida GAL program wants to keep it that way.

The snide, smug assumption implicit in the Florida GAL program memos, that kids don’t know what they’re talking about when they want to reunify and so should be ignored, is contradicted by the facts of this case – and every other case in which a child welfare agency was wrong to remove a child and wrong to keep the child in foster care.

The First Star factor

Even all this wasn’t quite enough to prompt Latham to do his study.  It was the fact that the Florida GAL program also engaged in rampant statistics abuse.

There is a group called the “First Star Institute” which periodically puts out reports grading the states on how well they provide legal representation to children.  Their criteria include whether children get lawyers and, if so, if those lawyers are required to fight for what the child wants.

I’ve never thought these reports were terribly useful for one reason: They grade states on what their laws require – but in child welfare that often is very different from the facts on the ground.  After all, for nearly 40 years federal law has required states to make “reasonable efforts” to keep families together – and we all know how that’s worked out.

But the Florida GAL program has attacked the First Star report in a way so intellectually dishonest that it prompted Latham to act.

Here’s what the program did: They pulled out a few standard outcome measures and said Look! Here are some states that have client-directed representation and they’re even worse than Florida!  As Latham put it: “Cherry picking some states that suck worse than Florida and happen to be in a report you don’t like is not a validated statistical method.”

But, hey, if that’s the way you want to do it, Florida GAL program, I’ll go for it.  Or, to quote one of my favorite lines from Inherit the Wind, “We’ll play in your ballpark, Colonel.”

The Florida GAL program cites some measures by which New York State is worse than Florida (and  I'll come back to that.) But on one of the most important measures of all, the rate at which children are torn from their parents, Florida is nearly twice as bad as New York.  And for reasons I hope are obvious, anyone who claimed Florida children are twice as safe from abuse as New York children would be laughed out of the room.  By your own logic, Florida GAL program, that must be your fault!

The proportion of children trapped in foster care on any given day is more than 20 percent higher in Florida than in New York.  By your own logic, Florida GAL program, that must be your fault!

In California, only about ten percent of children have a CASA. In Florida it’s much higher. And Florida takes away children at a rate 63 percent higher than California. By your own logic, Florida GAL program, that must be your fault!  (There actually is evidence  that more CASA = more needless foster care.  But this isn’t it.)

Even where other states do look worse, there is less to it than meets the eye.  Yes, it’s true, the average length of stay in foster care is longer in New York than in Florida.  Of course it is.  New York State, and especially New York City, are far more careful about taking children only when its genuinely necessary – although New York still makes plenty of mistakes in that regard.  So in New York, it’s far more likely that the foster children really need to be in care and the children and families have more severe problems.  So of course they’re going to be in care longer.

The various local governments that run child welfare in New York easily could make their average length-of-stay numbers look better: They could just rush out and take, say, 50 percent more children, then return them in 30 days or less.  The average length of stay would plummet. (And, sure enough, in still another fascinating post, Latham notes that Florida already holds thousands of children in foster care for 30 days or less.)

It was the misuse of the First Star report that pushed Latham to act.  Because, as he put it, the latest fear-mongering email from Florida GAL

went and dragged math into it. … The email suggests that, based on the outcomes, the GAL Program is provably, mathematically superior to kids having attorneys represent them directly. That felt like a challenge. If it’s provably true, then let’s try to prove it.

So he did. In fact, he did a much more sophisticated version of what the Florida GAL program itself did: He compared outcomes in regions where the rate of GAL representation is high to the rate where GAL representation is low.  The results are discussed in detail in the previous post to this blog and in much more detail Latham’s own post.

But it boils down to this: When Latham played in the Florida GAL program’s ballpark, he struck out the side.

In search of an evidence-based alternative

But amid all the fighting over “best interests” vs. “client-diected” representation for children let’s not forget that there is another alternative that really is evidence-based.  A comprehensive, large-scale peer-reviewed study using one of the finest methodologies in research -  propensity score matching – found that there is a great way to reduce foster care without compromising child safety: Provide high-quality interdisciplinary representation to parents.

The evidence is in: Florida would get far better results for children if it took the nearly $55 million a year it spends on its GAL (CASA) program and spent it instead of this model of family defense.  And Congress should follow suit.  The same Congress that makes it almost impossible to fund prevention programs under the Family First Act because of absurdly-high standards for declaring a program “evidence based” is glad to lavish funds on CASA – for which there is no evidence of any good, and some evidence of harm. I would argue, a lot of evidence of harm. Congress should divert all CASA funds into evidenced-based prevention and family preservation programs.

People who know better

Robert Latham takes no joy in any of this.  Indeed his post is called “A Reluctant Post About the Guardian ad Litem Program: Its Ethics, Efficacy, & Future.”  As he explains:

I worked at the Guardian ad Litem Program and I love the people there. I got started blogging in child welfare through defending the Program against unfair criticism and I still defend them when the criticism is unfair. I will do it again in this post, when appropriate. … Yet, it’s getting harder to ignore the messaging coming out of its Tallahassee office. The accusation that representing kids means blindly throwing babies into unsafe situations is nothing new. I am still sad, though, because I know the people who wrote this letter know better.

I know how he feels. I know one of the people responsible for the letter too.

The Florida GAL program is run by Alan Abramowitz.  During Florida’s all-too-brief era of child welfare reform, under Bob Butterworth and then George Sheldon, Abramowitz ran the child welfare division of the Florida Department of Children and Families.  He talked the talk about family preservation better than any child welfare administrator I know.  And the data suggest it wasn’t just talk.  But it’s stories such as this, from more than a decade ago, which show what a class act Abramowitz can be when he wants to be.

So to see Abramowitz distributing fear-and-smear memos – well, sad doesn’t quite cover it.  Because Prof. Latham is right.  Alan knows better.