Monday, November 9, 2009

Foster care hearings: “Sunshine is good for children”

Matthew Fraidin is Associate Professor of law at the David A. Clarke School of Law at the University of the District of Columbia. Two years ago, he started a clinical program in which students represent exclusively birth families in child maltreatment cases – thereby doubling the total number of such programs across the country (the first is run by NCCPR's President, Prof. Martin Guggenheim, at New York University School of Law). His previous work has included representing both children and parents.

Below are excerpts from testimony Prof. Fraidin gave last week at a hearing of the D. C. Council, in which he calls for opening court hearings in these cases to the press and the public. The title for his testimony, "Sunshine is Good for Children" is a quote from the former Chief Judge of New York's highest court, the Court of Appeals, Judith Kaye, who ordered child maltreatment hearings opened in that state.

In my law students' cases, more than 60% -- that is 60% -- of the children taken from their families have been returned without ever being found abused or neglected. Yes, more than 60% of the children taken from their living rooms and schoolhouses, from their brothers and sisters and teachers and grandparents and friends – more than 60% of the children housed in foster care with strangers! – do not need to be there, by the government's own admission. They take the children, the Court rubber-stamps the removal, and only later, when my students find the information the agency missed, explain to the agency the information it distorted, and demonstrate that the child would be safest and healthiest in her own home, does the government agree – voluntarily! – to send the child home and dismiss its own case. Secret proceedings means that you can't meet the children whose lives are turned upside-down, perhaps never to be righted – for no reason.

You can't observe the rubber-stamp hearings. You can't watch a case worker hem and haw an explanation about why a distraught child hasn't been referred to a therapist, despite a court order directing the referral. You can't see a lawyer guessing at his client's position, rather than knowing it, because the lawyer hasn't met with the client since the previous court hearing. You can't sit in the back of a courtroom and shake your head in frustration and disgust at a judge who openly flouts the law, refusing to let a child live with her beloved aunt, simply because it is that judge's "personal policy" not to allow children to live with relatives unless [the Child and Family Services Administration (CFSA), D.C.'s child welfare agency] agrees. You can't know what's going on, and you can't do anything about it.

Operating behind an impenetrable iron curtain that is anathema to American governance, the Family Court deprives children of the checks and balances they need for health, safety, and stability.

I am here to testify that sunshine is good for children.


The District of Columbia is out of step with a growing national trend by guarding the walls that, in turn, guard adults' secrets and their errors of commission and omission:

  • Judges say open courts are good for children: The National Council of Juvenile and Family Court Judges issued a public Resolution in 2005, attached to my testimony, supporting open courts. The National Child Abuse Coalition, the Council of State Court Administrators and the Conference of Chief Justices all agree that states should have discretion to open their courts. …
  • Seventeen states have opened child welfare proceedings …

  • No state that has moved to transparency has ever shut down again. Many states opened child welfare hearings on a "pilot project" basis, and none retreated to the darkness of secrecy.
  • Doubters are convinced:
    Even judges and children's advocates who initially were vigorously opposed to transparency become enthusiastic converts, convinced of the benefits to children. After Minnesota's courts had been open for a year, the Minneapolis Star-Tribune noted that "the greatest fear--that troubled children would be victimized and embarrassed by sensationalized new media coverage and community scorn--has yet to be realized."
  • Open court proceedings empower children: According to Minnesota Judge Heidi Schellhas, "Open child protection proceedings may…assist the psychological recovery of the abused children…'victims of abuse often carry their burden alone, in secret' and closed proceedings simply 'continue the notion that something shameful has happened, and that no one should be told.'"…
We cannot be sure adults are serving children unless we can see them. If adults' actions are hidden behind a wall, we are literally in the position of having to take the adults' word that they're doing their job. …


One of my former child clients, now dead by gunshot, asked his group home not to house him with a roommate because, he admitted, he was disliked by some of the other children and felt uncomfortable with them. The group home ignored him, as well as my similar request on his behalf. Another resident of the group home – also now-deceased by gunshot -- came in and stabbed my client in the shoulder with a screwdriver. Bad enough, but the agency then proposed to bring both boys to the CFSA offices to put them in a room together to "mediate the dispute." No one knew this went on – no one has ever known until you, now, some six or more years later.

Same child: in addition to being stabbed, the child was victimized when his new roommate allowed other boys into the shared room. The other boys stole some of my child client's clothing. It was all he had, in two garbage bags and a battered suitcase. He'd been in foster care since he was nine years old, and had carted sneakers and clothing to the dozen or more homes he'd lived in. He was enraged by the theft, and broke some of the thief's property and kicked a hole in a wall. Arrested for the destruction of property, he was locked up overnight, for the first time ever, and charged as a juvenile. The CFSA worker was set to tell the delinquency judge that the child's best interests would be served by going to Oak Hill [D.C.'s juvenile jail] because it would "be therapeutic for him." I remonstrated with the worker in the courthouse hallway and burned up telephone lines for hours until I located a foster parent with an empty bed and persuaded CFSA that a foster home would be more appropriate for the child than Oak Hill.

Until now, no one has known about this.

No one has known until now that the boy became a loving, gentle, doting father. The baby's mother went off to finish her final semester of college, and the ward was the baby's only caretaker. No one has known that the adults working for CFSA refused to allow the young dad to live with his baby. CFSA had no teen-father placements, they said. They assigned him to programs and buildings that did not allow babies. So he "absconded" every night, meaning he went to his mother's home, or his mother-in-law's home, or to his grown sister, or to an aunt, or to a friend or anywhere he could keep his baby. Demerit after demerit after demerit from the adults at CFSA, harassing him, adding stress to an already-burdened life.

No one has ever known that the adults at CFSA later sought again and again to have this child's neglect case closed because he wasn't appreciative of the services they were offering.

No one has known until now, from this testimony, that when my child client became an adult and buckled under the stress and picked up minor adult criminal charges, the adult employees of CFSA and [the D.C. Office of Attorney General] OAG strenuously resisted my pleas and my client's to install an operating telephone in his residence. See, he was wearing an electronic ankle bracelet, and needed the telephone to be working to connect with the bracelet, so that he would not violate his conditions of release on the criminal charge. The adults working for CFSA and OAG said, again, that it would be better for the child to go to jail – the D.C. Jail, this time – than to reside in their care. So they refused to install the telephone to make sure he would be locked up. Then, they could close his case and get him off the rolls. Voila! Lower caseloads!

The postscript is, of course, my child client's death. CFSA finally having worn down the Family Court Magistrate Judge, the child's case was closed a few months before he turned 21. A bright, sensitive, sweet guy, he had lived in dozens of foster homes, group homes, with his mother and grandmother, with his sisters, and in at least one RTC, and had no ties to anyone but his wife and children. He had attended more than a dozen high schools without graduating. He had a marijuana habit, and maybe others, that seemed relatively low-level to me, but showed no signs of abating. He had been trying to hold down a job, and also had been stealing drug dealers' small stashes and selling those to support his two children.

He was shot at 1408 Girard Street on the day police were installing a crime camera around the corner. He made the paper for that. He made the paper again, though I'm the only one who knew it, because he wasn't identified, when Lafonte Lurie Carlton, his killer, was released a few years later from Oak Hill and killed again.

My child client would have wanted Carlton to be released, by the way. He knew children need lots of chances and lots of help. He also knew, painfully, that adults often fail children, even adults who mean well and certainly, adults who don't care or can't be bothered or who have other priorities. Would that dear child still be alive if the adults who hurt him and ignored him and despised him had been seen for what they'd done? Might they have straightened up a little and flown a little righter if they'd known that, like other adults, they could be held accountable for their actions?


It's ironic that teaching our children "responsibility" is a major tenet of parenting. We want children to grow up to understand that that their actions have consequences. While parents try to teach this value to their charges, the adults surrounding children in the foster care system are not responsible for what they do and don't do. In our secret system, adults don't have to live the value, to practice what they preach.

Yes, we must ensure that the right adults have the right information to help children. It is equally important, however, to make sure we don't give adults a blank check to go along with that power. We have to make sure they use their power to help children. We are all responsible and we all must watch: family, friends, neighbors, the press. No one can be healthy in the dark: sunshine is good for children.