Sunday, December 13, 2009

From foster care to family preservation: One lawyer’s journey


    The current issue of the Michigan Child Welfare Law Journal from the State Bar of Michigan Children's Law Section is an extraordinary resource; not just for lawyers and not just for people concerned with Michigan. The theme of the issue is aptly summed up by the quote above.

    In one article, originally published in Rise, the outstanding magazine written by parents who've been caught up in child welfare systems, a mother talks about how her children's lives were nearly destroyed by CPS, all because the mother was, herself, beaten by the children's father. CPS decided she was a bad mother because she "allowed" the children to see her being beaten. (Thanks to a class-action lawsuit settlement (for which NCCPR's Vice President was co-counsel for plaintiffs) this is illegal in New York City, but entirely permissible in Michigan and elsewhere, even though the harm of removal for children actually is greater when they are taken from battered mothers. Although the group that so arrogantly calls itself Children's Rights settled a lawsuit in Michigan, this issue, of course, is not covered.)

One reason the mother suspects for her family's ill-treatment: "There had recently been a few deaths related to domestic violence. I think the [CPS] worker feared that my husband would hurt me and didn't want her name on the 5 o'clock news.

    The story also illustrates how, without safeguards, Team Decisionmaking (and similar practices with similar names, such as Family Group Decision Making and Family Group Conferencing) can be abused, and become just another way to bully families.

    In another article, a juvenile court judge describes how he learned that running his court like an old boys club, in which everything is done informally, "off the record," is no way to achieve justice.

    But perhaps the most remarkable article is from Tracy Green, Managing Attorney for the Detroit Center for Family Advocacy. Green describes her personal journey from social worker overseeing foster care cases, to lawyer guardian ad litem (L-GAL) a lawyer who advocates for what she thinks is best for a child regardless of whether it's what the child wants (in effect, a CASA with a law degree) to a lawyer representing parents. Below, some excerpts from Ms. Green's story. (In all cases, emphasis is in the original.)


It was during my time working in foster care that my commitment to family preservation began; when I observed first-hand the ravages of poverty and social inequality that often characterize large urban communities. I was an eye-witness to the destruction of so many families involved in an unfair child welfare system, and this was a lesson for me in gratitude. If I had nothing else, I knew that I had my family -- my child. I could not imagine what it was like for parents to be without their children, and for those children to be without their parents. "What could be more devastating," I thought, "than losing your family?"

As a foster care case manager, it was my job, among other things, to monitor the well-being of the children on my caseload during their stay in foster care. The evidence of psychological, emotional and social damage suffered by the majority of these children as a consequence of being away from their families was pronounced (even from a lay person's perspective), and it was irrefutable. …

Unlike the children … who had many professionals and interested parties (parents, jurists, L-GALs, case managers, court appointed special advocates, foster parents, and the like) whose job it

was to advocate for them, the parents had only their attorney to speak for them. And unlike the children, the parents were judged so harshly and treated like criminals. They were publically derided and dismissed, often by their own attorneys.

Still, the vast majority of these parents, being poor and undereducated, were not bad people at all. They were merely confronted with seemingly insurmountable challenges, the likes of which most of the privileged professionals – those who were making crucial decisions about these parents' families – had never imagined. The parents were people whose reality of everyday life was in stark contrast to that experienced by everyone else in the system who stood in judgment of them – the jurists, lawyers and caseworkers, courtroom staff members – everyone. They lived their lives with constant instability, fear, anxiety and hopelessness, with little or no resources or coping mechanisms. Nevertheless, what they had in common with everyone else was their love for their children. And their children loved, needed, and wanted desperately to be with them, almost without exception. …


At first, I represented both parents and children as L-GAL. I soon discovered, though, that most of the zealous advocacy in child welfare proceedings was done by the L-GALs, ostensibly on behalf of the children. Nonetheless, the fundamental problem was that this "advocacy" was almost invariably adversarial to the parents.

The L-GALs, although usually well-intending, were rarely objective. They hardly ever advocated for the speedy return of their child clients to their families. In fact, oftentimes, more than the assistant attorney general or prosecuting attorney representing the state petitioners and caseworkers or their agents, these L-GALs served to thwart reunification at every turn of the case. They fought fervently on behalf of maintaining the children in foster care or, worse, for termination of parental rights – even where the parents had addressed the issues that originally brought their children to the attention of the court, and even where no realistic prospect of adoption for the children existed.

The jurists, more often than not, would defer to the L-GAL's arguments and recommendations. All the while, the parents' attorneys sat seemingly impotently or indifferently, not even putting forth an effort to fight for the return of the children to their parents. …

Finally, I arrived at the inescapable conclusion that there is no meaningful child advocacy without parent advocacy. In fact, child advocacy that is in opposition to parents is a myth …if one truly desired to help these foster care children, she needed to represent their parents.


Later in the article, Green writes about one of her cases:

    About seven months ago, after working tirelessly with the mother for the return of her children, the referee recommended (and it was subsequently ordered), over the adamant objection of the L-GAL, that three of the children be returned. Naturally, the mother was overjoyed, and so was I. I knew that it was only a matter of time before all of the children would be returned.

At the next dispositional review hearing, I came to court anticipating a recommendation for more of the children to be returned because the children who were already there were doing very well. And return of more children was, in fact, the recommendation of the caseworkers on the case. When the L-GAL announced that he needed a sidebar before the hearing, however, my heart sunk. "What in the world would be his objection, now?" I thought.

All of the parties' attorneys assembled in the inner hallway, where such sidebar discussions usually occur. I held my breath as the L-GAL, in a clearly self-satisfied manner, identified the following issues in the mother's home as a reason, NOT for the delay of return of additional children, but for the REMOVAL of the ones who had recently been returned home to the mother:

A vacant lot across the street with piles of debris

Chips of mortar missing from the porch of the rental property of the house (to which the mother had recently moved to improve her housing situation)

Reports from neighbors, whom he had interviewed, that gunshots had been heard on the mother's block two days before.

WHAT???!!! I could not believe my ears. I was absolutely disgusted – and angry! I chastised the L-GAL for (among other things) his clear ignorance of the conditions in which poor families, not by choice, live in inner-cities. And, after going on the record, he didn't even dare to raise those same objections (though he predictably managed to find others to raise).

The children were not removed. And I am delighted to report that last month, two more were returned. Now, I actually see hope in the mother's eyes and pride on her frequently smiling face. I am certain that her children see it, too. Reportedly, they are thriving and happy to be home with their mother. …

Now, almost 15 years after my decision to focus on parent advocacy, I am proud that I have played an important role in the restoration of countless families, all through zealous parent representation. The vast majority of my previous clients were reunited with their children, and their children have remained in their care.


Ms. Green says her work is "indescribably rewarding" even though it also can leave her "frustrated and angry (a lot)."

That's as it should be. The people to worry about are those who see what the child welfare system does to children every day and are not angry; those who have become too cynical or too sanguine or too smug to care - if they ever cared at all. Anyone who works in child welfare and doesn't get angry should do the children a favor and get out -- so the job can be done by someone who still gives a damn.