Thursday, April 15, 2010

Three more foster care lawsuits doomed to fail, three more bad child welfare systems likely to get worse


The group that so arrogantly calls itself "Children's Rights" has filed another one of its Mclawsuits against a state child welfare agency – this time in Massachusetts. And NCCPR's sources say that another such Mclawsuit, in Texas, is imminent.

Meanwhile a group which is unaffiliated with CR but has the same myopic outlook about how to fix child welfare systems, the National Center for Youth Law, has filed the same kind of suit in Nevada. (I've come to think of the California-based NCYL as "CR West")

All of these child welfare systems almost certainly are every bit as bad as CR and NCYL say they are. But at best, these suits are likely to drag on for years, perhaps decades with no real improvement (witness CR's suits in Washington DC and Connecticut and NCYL's in Washington State). At worst, they will make these child welfare systems worse, by diverting scarce resources from prevention and family preservation into more child abuse investigations and foster care.

Neither CR nor NCYL has learned from successes elsewhere – including their own.

The only class-action lawsuit settlements that really work are those that push child welfare systems to rebuild by emphasizing family preservation; or at least include such efforts as part of the reform effort. The consent decree that helped transform child welfare in Alabama, brought by the Bazelon Center for Mental Health Law, is the classic example. (The Legal Director of the Bazelon Center is a member of NCCPR's Board of Directors.) But CR's own settlements in New Jersey and New York City also illustrate this, and so does NCYL's settlement in Utah. In all three cases, individuals and organizations wiser than CR or NCYL helped them craft settlements better than anything they could come up with on their own.

But it seems neither organization has learned either from their failures or their successes.

Judging by CR's press release, the Massachusetts suit zeros in on the problems of abuse in foster care and moving foster children from foster home to foster home – enormously important issues that are at the heart of NCCPR's own advocacy. But the key cause of those problems is the simple fact that children in Massachusetts are taken from their families at a rate nearly 50 percent above the national average. That creates an artificial "shortage" of foster homes, so workers wind up moving children from home to home. And it creates an incentive to ignore abuse in foster care.

But CR, of course, ignores this issue. Worse, their track record in places like Michigan and Georgia suggests they will press for settlements that will allow the states to divert funds now used for prevention, family preservation and help to impoverished families, into more child abuse investigations and more foster care. That, of course, will make everything worse.

The wrongful removal problem in Nevada is even worse than in Massachusetts, with a rate of removal 70 percent above the national average. A comprehensive review of a random sample of cases by one of the nation's leading experts, University of Nevada-Las Vegas Social Work Professor Leroy Pelton, found widespread wrongful removal and confusion of poverty with "neglect." But NCYL ignores the issue.


And both organizations appear determined to extend the war on grandparents that CR is waging in Michigan – which already has caused the expulsion of hundreds of children from the homes of grandparents and other relatives in that state.

Massachusetts already is more restrictive than Michigan about placing children with relatives when their homes are unlicensed. It can be done only when a court approves. But apparently, CR thinks even this is not restrictive enough, since their Complaint complains about these exceptions.

NCYL's suit is even worse. Nevada law explicitly allows placing children in unlicensed homes as long as basic health and safety standards are met. (A great deal of formal licensing typically involves standards geared to middle-class creature comforts.) NCYL argues that the standards under the Nevada law are, in fact, too low. But instead of looking for sensible middle ground, NCYL offers up a horror story or two and appears to demand that every impoverished grandparent meet precisely the standards used to license the homes of middle-class strangers.

There is special irony in this in light of a key issue raised in the NCYL suit: the misuse and overuse of psychiatric medication on foster children. Florida is closely examining this issue and may be doing more than any other state finally to come to grips with it. Florida's data show that the best protection against overmedicating foster children is – grandma. Foster children in kinship placements are far less likely to be prescribed psychiatric meds than those placed in what should properly be called "stranger care."

It's not hard to figure out why: Grandparents and other relatives are more likely to love these children, and so will tolerate more difficult behavior before demanding a prescription.

So now we have the spectacle of the National Center for Youth Law simultaneously identifying an extremely important problem – and undermining the best solution.

And God only knows what kind of chaos CR has in store for Texas.


Entirely on its own, Texas already came up with the dumb idea of diverting funds from prevention and family preservation into more child abuse investigators and foster care workers. The legislature tried it in 2005, and it failed miserably – just as NCCPR predicted it would in a report we issued on Texas child welfare that year. Now the Texas child welfare agency is trying to reverse years of escalating entries into foster care. That may well be what made Texas a target for CR.

Indeed, a recent "Executive Director's Report" from CR's Marcia Lowry, indicates that CR is about to escalate its war against impoverished families caught up in the child welfare system. Instead of simply ignoring the problem, CR is now threatening to attack states that have succeeded in reducing entries into care. They've already pressured the Tennessee legislature into repealing a law that would have put one very small brake on such removals.

And CR is threatening to make its own determination of which prevention and family preservation programs "work" and which do not. In fact, there is abundant evidence already available on this; and CR is almost certain to get any such effort wrong.

Lowry likes to say that she doesn't know how to fix poverty, but she knows how to fix foster care. In fact, the results of her lawsuits suggest she doesn't know how to fix either one – and her efforts sometimes make the poverty worse.

No one can stop CR from suing Texas of course. We can only urge that state, and Massachusetts and Nevada as well, to fight any proposed settlement that is not built around doing more, not less, and spending more, not less, to keep families together.

Perhaps then Texas won't be the latest state to see its children wronged by "Children's Rights."