Sunday, September 16, 2007

Utah's big bureaucratic blunder

Try to imagine the trauma for a young child. The child suddenly is taken from everyone he knows and loves. Perhaps the move was necessary, perhaps not; either way, for a young enough child it can be an experience akin to a kidnapping.

First the child is institutionalized, his “care” in the hands of rotating shift staff. Every time the child gets used to someone, gets comfortable with someone, the shift changes and that person’s gone. Then the child is uprooted again to spend a couple of weeks with total strangers.

And all the while, waiting in the wings, is someone who was ready from day one to comfort this child and cushion the blow of substitute care: Grandma. But grandma is denied custody of the child for weeks on end

This needless trauma, this inexcusable uprooting of children first to an institution and then to a stranger before the child winds up with grandma – turning what should have been one placement into a total of three – is happening routinely in one state: Utah. It’s happening because of a giant bureaucratic blunder in a state that already was profoundly hostile to kinship care. And it’s happening because the man with the power to undo the damage in an instant, the director of the state’s Division of Children and Family Services, Duane Betournay, refuses to act.

The story begins with the passage last year of the Adam Walsh Child Protection and Safety Act (one of the last pet projects of disgraced former Florida Congressman Mark Foley). It’s one of those laws designed primarily so Members of Congress can send out press releases preening about how they “cracked down on child abuse.”

Like a safe, but ineffective medicine, the law is mostly harmless “when taken as directed.” But Utah forgot to read the label.

At issue is a provision which adds a new layer of criminal records checks for prospective foster parents. The issue is not whether to check the background of a prospective foster parent or not; records checks have been required under federal law for nearly a decade and most states have been doing them for far longer. Rather the Adam Walsh Act specified a particular, additional check: sending off a prospective foster parent's fingerprints to the FBI to see if that turns up someone with a criminal record.

It turns out that, absent the right kind of technology, it can take a long time for the FBI to get back to you with the results; seven weeks is not unusual.

That’s not a problem for strangers who volunteer to become foster parents. For them, the background check is part of a licensing process that takes weeks or months anyway, and they have not come forward in the interests of any one particular child.

But it can be a huge problem for grandma. After all, she had no intention of becoming a foster parent until she got a call, perhaps in the middle of the night, saying her grandchild had been taken away, and could she step in to help?

But now, because of the new background check requirement, would children really have to wait seven weeks for kinship placements? Child welfare agencies began doing the sensible thing: they started asking questions.

And as NCCPR learned about the new requirement through news accounts and a discussion with a Congressional staffer, we asked around, too. Other advocates were hearing similar concerns. The Children’s Defense Fund found the answer. They found it right on the website of the Administration for Children and Families. On January 31, 2007 ACF issued specific guidance assuring child welfare agencies that they were free to place children with grandparents and other relatives while they waited for the results of the FBI fingerprint check.

Problem solved, right? Surely no child welfare agency would be so callous, so mired in bureaucratic thinking, that it would rush out and ban these placements without carefully checking first, would it?

And, indeed, as far as I know, no child welfare agency in the entire country made such a mistake.

Except Utah.

A lot of fingers are being pointed concerning why, but the bottom line is, Betournay and his staff at the Utah Division of Children and Family Services jumped the gun, assumed they could not place children with grandparents and other relatives while the background checks were pending – and started warehousing children in parking place shelters and then ultra-temporary homes with strangers (all foster home placements are supposed to be temporary, these placements were intended to last for a few weeks) while they sat on their hands waiting for the background check results. Utah officials claim they asked questions first, but apparently they didn’t ask the right people, and they didn’t wait for a definitive answer.

But surely finding that definitive answer would solve the problem, wouldn’t it? That’s what I thought, after CDF found the guidance on the ACF website. I wrote to Betournay to share the good news, and included the link to the ACF guidance. I naively expected that, given definitive guidance from the feds, Betournay would simply reverse his agency’s blunder.

Instead, I got one dissembling bureaucratic response after another. It soon became clear that the agency was, in fact, desperately searching for ways to justify its decision, including searching for other agencies that made the same mistake. So far, it has found none.

So I asked for help from the Youth Law Center, an outstanding public interest law firm that has been particularly aggressive on the issue of curbing the misuse and overuse of shelters. They have successfully curbed their use in Arizona in part by threatening to sue that state. (To see why shelters do so much harm, check this section of the Blarchive and do a search for “human teddy bears.”) YLC Executive Director Carole Shauffer arranged a conference call with Betournay, some of his deputies, and NCCPR.

Only then did Betournay drop another bombshell: Not only did his agency jump the gun and misinterpret the law, they rushed to get their own legislature to change state law to bar placements with relatives until the new checks were completed. By now it was May and the legislature was out of session. So the damage Betournay and his aides had done to state law could not be undone, he claimed, until January.

Ultimately, we wrung three concessions out of Betournay:

● He would make available statewide new technology, called Livescan, which, he claimed was shortening the timeframe for the new checks to 48 to 72 hours in Salt Lake City.

● He would return to the legislature when it reconvenes in January 2008 to seek repeal of the change in state law.

● He would gather more data on the use of shelters and begin looking at ways to reduce shelter use, including, at Shauffer’s suggestion, creating “gatekeeping mechanisms” so it is not simply the easiest choice for a caseworker in a hurry.

Once again, however, weeks went by before Betournay finally would confirm these commitments in writing.

After that, hearing nothing further I assumed that the problem had at least been ameliorated by the techno-fix, and the rest would be solved in January.

But then the Salt Lake Tribune ran a story on a separate, but related topic: the fact that Utah finally would be exiting from a consent decree that forced improvements in its child welfare system. The lawsuit was brought by the National Center for Youth Law (which should not be confused with the Youth Law Center) and overseen by the Child Welfare Policy and Practice Group, the agency created by Paul Vincent, the reformer who did so much to transform child welfare in Alabama.

Even as children continued to be trapped in the shelters, Betournay et. al. did lots of bragging about getting out of the consent decree, including a claim that, as a result of the improvements under the decree, Utah had significantly reduced the number of children taken from their parents each year.

But NCCPR tracks entry-into-care data very closely. We knew that wasn’t true. We contacted Vincent, who passed our concerns on to Betournay. Betournay admitted the information his agency gave the Tribune was wrong – they had mixed up two databases, he said – and the Tribune ran a correction.

It may well have been an honest mistake – but it reminded me of the honest mistakes my students made when I taught journalism: No one ever did more work or turned in a paper early because of a misunderstanding about course requirements or deadlines.

So it seemed like a good idea to see if the fix promised in May really was working. I contacted a very good reporter who covers social services for the Salt Lake Tribune, Kirsten Stewart, and told her about the whole controversy. She did some digging, and in a compelling story earlier this month, she came up with the answers:

● The Livescan technology often failed; background checks still were taking weeks.

● Shelter officials were even discouraging placements in those ultra-temporary foster homes with strangers, holding children in the worst form of placement even longer.

● Betournay’s agency actually had made the children’s trauma worse. Again, citing the Adam Walsh Act, the agency was refusing to allow even overnight visits between the children they had institutionalized and their grandparents or other relatives, while the background checks were pending.

The Tribune followed up with a suitably scathing editorial.

This is, in fact, a problem that Duane Betournay could solve in the blink of an eye. Since everyone agrees what Utah did was a huge mistake – Betournay himself is now on record saying so – who would object if the change in law were not enforced for a few months? Child welfare agencies fail to enforce laws and regulations all the time – that’s why they get sued so often. So for once, why not do it in a way that helps children instead of hurting them?

Or, if that’s really too much to ask, Betournay could ask the Governor to call the legislature into special session. Yes, that could cost – but so what? Isn’t it time for a state to put some money where its mouth is when it comes to all the gooey rhetoric about “children are our first priority,” blah, blah blah.

And besides, a special session probably would save money in the long run, since placements with grandparents cost a lot less than warehousing children in shelters.

Yet months after learning that it was within his power to help these children, Betournay hasn’t budged. One has to wonder if this is related to Utah’s longstanding hostility to kinship care – the Tribune reports that the state uses kinship care at one of the lowest rates in the country (even though such placements tend to be more stable, better for children’s well-being and, most important, safer than either stranger care homes or institutions).

The failure has implications beyond this one issue. Earlier I mentioned the fact that the state is about to exit a consent decree. Largely thanks to a reform plan crafted by Vincent, the decree has led to real improvements in child welfare. And the hard work was accomplished largely under Betournay’s predecessor running DCFS. It is extremely difficult to sustain such gains once the court isn’t looking over an agency’s shoulder (and, often, even when the court is still there.) The key to sustaining such gains is strong, gutsy leadership from the child welfare agency.

It’s hard to see where that leadership is going to come from in Utah.