Sunday, December 16, 2007

What Dorothy learned and Kansas forgot

Correction: This post states that the Kansas child welfare agency licenses the state's foster homes and institutions. In fact, that is done by another state agency.

There is a land where a child can be interned in an institution for more than a week, cut off even from all communication with family for three days, and yet be an un-person to the bureaucrats who run the state child welfare agency. It is a place where holding a child in foster care for a week can be labeled a way to prevent foster care.

As I wrote last week, it isn’t Oz. It’s Kansas.

In fact, the system in Kansas sounds less like something that sprang from the pen of L. Frank Baum and more like a creation of Lewis Carroll, with an assist from Charles Dickens, Rod Serling and, especially, George Orwell.

The consequences for the state’s vulnerable children are deadly serious.

Like most states, Kansas requires that, when a child is torn from her or his parents based solely on the authority of the child welfare agency or law enforcement, there must be a court hearing within 72 hours, excluding weekends and holidays. But in the state’s largest county, Sedgwick, which includes Wichita, authorities somehow were interpreting 72 to mean 144 – in other words, six days. And since you can’t go six days without hitting a weekend, children really were being interned – mostly in an institution – for eight days before any court ever heard the case. And here’s where it gets a bit Dickensian: The institution in question, the Wichita Children’s Home, actually has a policy of barring all communication between a child and his family for the first three days. Even an accused criminal gets one phone call, innocent children in Sedgwick County do not.

When the legislature “clarified” the law and told Sedgwick County it had to start behaving like every other county, judges and the District Attorney’s office, which effectively represents the child welfare agency in these cases, threw a fit. Their reasons offer a rare x-ray of the soul of a child welfare system. It’s not pretty.

For starters, the Assistant District Attorney in charge of child abuse cases in the county, Ron Paschal, argued that children needed to be held in foster care for eight days in order to prevent foster care. No, really. You see, by holding the child for eight days, he said, workers had time to investigate the case and find an alternative to foster care – like sending the child home or placing the child, informally, with relatives.

There are just two problems with this:

● First, if 80 percent of the children can go home or to grandma’s house within eight days, odds are very few of them ever needed to be torn from everyone they know and love, hauled off to an institution and interned there for a week in the first place – an enormously traumatic experience, particularly for young children.

● Second, (although this one would seem to be obvious): you do not prevent foster care by placing a child in foster care. You prevent foster care by not placing a child in foster care.

Authorities in Sedgwick County explain away this one in a way Orwell surely would have appreciated: Those first eight days in an institution are not foster care, they say. They’re “protective custody”! So they don’t count! (If you find this hard to believe, that’s understandable. Check out NCCPR’s Kansas Report for full citations). And what makes it “protective custody”? Simple. A police officer engaged in the physical act of removing the child, so law enforcement, not the child welfare agency, supposedly has “custody.”

Both Sedgwick County and state officials cling to this rationalization even though it is the child welfare agency that often asks law enforcement to remove the child, the child welfare agency that licenses the places the children go, the child welfare agency that oversees the investigation, the child welfare agency that recommends what to do next and – perhaps most important – the child welfare agency that foots the bill. The child welfare agency reimburse the Wichita Children’s Home.

In fact, this kind of placement – ripping a child away from everyone she knows and loves, sometimes in the middle of the night, based solely on a caseworker’s judgment - is supposed to be limited to emergencies; situations where a child would suffer immediate harm if this were not done. The reason for that is obvious. If the threat of harm is not immediate, there is time to remove the threat instead of the children, or at least time to go to a judge.

So if there really is such an emergency, there should be no need for eight days to “investigate” whether the child needed to be taken at all. Instead of taking children this way only in genuine emergencies, the policy in Sedgwick County, Kansas boils down to take-the-child-first-ask-questions-later. So it’s no wonder that 80 percent of the children could go home or to a relative within a week.

And what kind of a case would warrant traumatizing a child this way. Let Ron Paschal, the deputy district attorney, tell you. Here’s what he told the Kansas Health Institute news service:

Let's say police come upon a two-year-old child at night, wandering the streets. They do some investigating and they find out the child had been left with a six-year-old. Now, maybe the children were unsupervised because mom was passed out drunk or maybe she's working two jobs, doing everything she can to make ends meet - she didn't have anybody she could leave the kids with.
If she's working, it may be that she needs (public) assistance or some parenting classes or some other form of support. Maybe the child can stay with an aunt or uncle or a grandparent while all this is being worked out? If they can, that child may not need to be in foster care.

In other words, the deputy district attorney in charge of child abuse cases in Sedgwick County, Kansas is justifying the internment of children for more than a week – and returning them afterwards not necessarily to their own homes, but sometimes to relatives – solely because of their mother’s poverty.

In fact, faced with this kind of case, a well-functioning child welfare agency would not remove a child from the home for even one minute. Rather, the caseworker would wait in the home until the mother got home from work. Then the agency would send a babysitter into the home. Or the agency could provide a one-time payment of “flex funds” to the mother to arrange for a sitter until after-hours day care could be arranged.

It is incomprehensible why, under these circumstance, Paschal would call first for institutionalizing a child for more than a week and then placing the child 24-hours-a-day with grandparents instead of simply asking those grandparents to baby-sit.

Not that holding a hearing in a timely manner would help much. According to the same news story:

When these investigations don't come together in three days, judges are expected to choose between the uncertainty of a sending a child home and the safety of foster care. "It's a no-brainer," [Juvenile Court Judge Jim] Burgess said. "You go with safety."

Leaving aside the fact that the story makes the classic mistake of assuming foster care is safe and all risk lies in returning the child home, the judge’s interpretation raises questions about whether it is consistent with state law. That law requires probable cause to support a belief there are certain specified grounds to keep the child in foster care. It does not say “hold onto the child while we figure out if there’s actually a problem.”

But then, Paschal himself says the 72-hour hearings are a sham – in all those other counties, that is. In that same news story:

Paschal said he doubted that other judicial districts' hearings are truly held within 72 hours of a child entering police custody. "A lot of times what happens is, yeah, they'll have a hearing and the judge will say [to the parents], 'You want a hearing? OK, here, let's schedule a hearing. When can you be here?'" he said.
"That's not really a hearing" Paschal said. "It's certainly not the way it is in Sedgwick County. When we have a hearing, the evidence is presented, there will be witnesses, and you will have the opportunity to cross-examine your accusers.”

How, exactly, this cross-examination can be effective when the parent’s court-appointed lawyer typically just met her minutes before the hearing, Paschal doesn’t say.

But then, it is almost as if Paschal realizes he may have gone a bit too far. If after all, 72-hour hearings are a sham, and if Sedgwick County must now hold its hearings in 72 hours, then…

So Paschal quickly clarifies matters. Referring to the fact that he believes Sedgwick hearings are not a sham, he says:

"That's the way it was when we had 144 hours and that's the way it is now," he said.

So now, Paschal is saying that all those other counties don’t provide a real hearing in 72 hours – but Sedgwick does. In that case, what’s the problem with holding the hearings in 72 hours? He explains:

"The only difference is the social worker doesn't have as much time to come up with an alternative" to foster care.

But, of course, the child already is in foster care.

It’s not just Sedgwick County that’s playing games. The State child welfare agency is using a similar dodge to grossly underreport the number of children taken from parents every year, undermining the integrity of the entire national data-gathering process. That story next week.

But you would think in Kansas they’d remember: For most children most of the time, there’s no place like home.

P.S. An ombudsman takes on the virtual lynch mob

On November 19, I wrote about how newspaper publishers help poison the climate for civil debate by giving hate-mongers a forum, and the ability to hide behind anonymity. Yesterday, the ombudsman for the Miami Herald weighed in on the topic in a very good column.