Tuesday, February 16, 2010

Foster care and family preservation in Los Angeles: Judge Nash isn’t helping

One of the most legitimate criticisms of American media from the left is that positions that in most other Western democracies would be part of the mainstream debate are shut out in America. American media present the full spectrum of opinion from center to right.

The health care debate is a good example. The debate is confined to President Obama's centrist proposal at one end, to right-wing yahoos screaming about "death panels" at the other. Proponents of, say, single payer, an option that is the norm in many other countries, are shut out.

The Los Angeles Times is setting up a similarly-skewed debate over family preservation. The debate is limited to people like officials from the county Department of Children and Family Services, who say there is just enough of it, to Times reporters, who have made clear in story after story that they think there is too much of it. Those of us who think that a county that takes children at one of the highest rates among America's largest metropolitan areas actually should be doing more to keep families together are marginalized.

So for the Times reporters, an op ed column last week by Michael Nash, presiding judge of the Los Angeles County Juvenile Court, was just what they needed. Nash insisted that Los Angeles County – and every other county in California – is doing everything it possibly can to keep families together.

Nash wrote to refuse a now-notorious Times headline (which, notwithstanding the lead reporter's denials , accurately reflected the story). The headline said: "County to end emphasis on family over foster care." Commented Nash:

The headline did not at all reflect the state laws under which the county's welfare system operates, and it sent a very negative message to readers. It reinforced the widespread perception in many communities that our child welfare system does more to break up than preserve and build families, the cornerstone of our society. This misperception often limits cooperation with the system.

Later, he writes:

…the emphasis of child welfare in California is and will continue to be on family over foster care, regardless of what The Times writes in a headline. … We are not going to run scared from our obligation to prioritize family unity, even in the face of deep budget cuts. I urge The Times and others to continue following our system.

So the parameters of the debate are Judge Nash, who says, in effect, "we're already doing everything possible to preserve families, just try and stop us!" vs. the Times reporters, whose stories make clear they harbor the misimpression that this is being done at the expense of child safety.

Left out entirely are those who us who note that:

Entries into care have been going up in Los Angeles County in most years after 2003 – which means DCFS and the courts have, indeed, been "run[ing] scared from our obligation to prioritize family unity…" even before any budget cuts.

Los Angeles County takes children at a higher rate than, among other places, New York City, metropolitan Chicago, and Miami. And there is solid evidence that lower rates of removal improved child safety in those places.


Judge Nash spends half the op ed quoting sections of California law which supposedly prove the state's commitment to family preservation. But mostly these are just broad statements of principle, like "It is the intent of the Legislature that nothing in this section disrupt the family unnecessarily or intrude inappropriately into family life." [Emphasis added.] And who, exactly would say they favor unnecessary disruption or inappropriate intrusion?

Then there's this one: "Before taking a minor into custody, a social worker shall consider whether the child can remain safely at home." Among the things the law says should be considered: whether there are any reasonable services that might allow the child to stay in the home safety. And who, exactly, would say that workers should not even consider this?

The extent to which these clauses are empty rhetoric can be seen not only in how Los Angeles compares to other big cities, but also by comparing counties within California. There is enormous variation in rates of removal, even though Judge Nash is quoting state law, which, last I heard, is supposed to apply to every county.

All of which means that, like most counties and states, child welfare systems in California do indeed do "more to break up than preserve and build families."

The only purpose these provisions really serve is to give bad child welfare agencies something to hide behind when they screw up. Oh, they say, we didn't leave this child in a dangerous home because our workers are too overwhelmed to investigate any case properly, or because we cut the training budget, or this particular worker was incompetent. No, they say, "the law made us do it."

That prompts more news stories, outraged editorials and press releases from state legislators eager to gain 15 minutes of fame by proposing changes in the law, supposedly to "emphasize child safety over family preservation." Actually, that emphasis already is in California law – it's in one of the sections Judge Nash cites in his op ed column, but that never stopped a grandstanding legislator.

Then the law passes, and a foster care panic that might have been confined to one county goes statewide. The only winners are the grandstanding lawmakers – and the reporters at the Times who can list the change in the law on journalism awards entry forms under "what did the stories accomplish?"

It's all self-serving nonsense, and now Judge Nash has served up a heaping helping of it.

And it's not hard to see what's really worrying the judge. It's his fear that, when people see the system as it really is, it "often limits cooperation with the system." In other words, families might fight for their rights, instead of accepting the way DCFS and the courts put them through the wringer with no-service service plans and meaningless hoops to jump through.


Judge Nash does make some good points toward the end of his column. He writes:

In fact, the policy of supporting families is consistent with child safety. … The history of child welfare in Los Angeles -- of which I have been a part for 20 years -- shows that wholesale removal of children from their homes fails children and their families, jeopardizes child safety and is, over the long term, detrimental to us all. … A few tragic cases are no reason to turn the clock back to the days of wholesale removal of children.

But if he really means that, there are some things he can do right now:

Demand that California join more than 15 states that have opened court hearings in child maltreatment cases to press and public, so we can see the typical cases, not just the horror stories. In past years, moves to change state law have been blocked by the California chapter of the National Association of Social Workers.

In some states, judges have the power to do this in their own courtrooms without waiting for legislators to act. If Judge Nash has that power, he should exercise it immediately – not just in carefully-selected cases where everyone knows in advance and can make themselves look good, but in every case – so no one, including the judge, knows when a reporter might stop by and see what's really going on. That way "The Times and others" really will
be able to follow what goes on in the system.

As is noted in the previous post to this blog, and outlined in detail in NCCPR's Due Process Agenda, of all the states that have opened their courts this way, not one has closed them again, because the Chicken Littles were wrong and the fears of opponents never came to pass. The former chief judge of New York's highest court said it best when she opened these courts in her state. Said Judge Judith Kaye: "Sunshine is good for children."

Demand that DCFS director Trish Ploehn climb out of her bunker and comply fully with the letter and spirit of California law, which requires her to make public records in cases of child abuse deaths or near deaths.

Demand that the law be changed to require such disclosure of records in all cases, not just deaths or near deaths, to avoid creating the misimpression that the errors in child welfare go only one way.

Demand that California pass a law specifically allowing Ploehn, and her counterparts in every other county, to comment on specific cases. That helps override the "veto of silence" in which a family complains of wrongful removal, the agency chief says "oh, there is so much more to it than that, and I wish I could tell you, really I do, but I just can't; confidentiality, you know" and the reporter, who didn't really want to do the story in the first place, meekly slinks away from it. New York, Maine, Iowa, Alaska and Arizona already have such laws. While they don't force an agency chief to comment at least in those states, reporters who know about the law also know that the agency chief does have a choice, and simply is stonewalling.

And most important:

Demand that parents get adequate defense counsel. That means lawyers with low caseloads and their own support staff, so they can do their own investigations and challenge those cookie-cutter no service service plans. In Washington State, which pioneered this approach, even the lawyers who represent the child welfare agency in these cases support it. Details, again are in our Due Process Agenda.