Thursday, April 28, 2011

Foster care in California: Confessions of an “adultist”

           A couple of weeks ago, the “patient of the week” on the medical drama House was a 16-year-old girl who wanted to set a record for being the youngest to sail solo around the world.  But her mystery disease turned out to be cancer in one arm.  It could be cured only by amputating the arm.

            The girl wanted to wait until after she sailed around the world.  The doctors said waiting that long stood an excellent chance of killing her.  The girl said she didn’t care.  But it wasn’t her decision.  She was not an adult.  Her parents decided her life was worth more than a sailing record.

            I thought about that drama when I read what the California Youth Connection, a group made up of current and former foster children, was proposing to trade in exchange for supporting a bill to open some of what California calls “dependency courts” in child welfare cases.
            Under current state law these courts are presumed closed, but judges can open them.  Legislation proposed by Assemblyman Mike Feuer (D-Los Angeles) would have created a pilot project reversing that presumption in three counties.  These courts would be open unless a party could give a judge a good reason to close all or part of a hearing.

            I discussed the merits of opening these hearings on this blog yesterday, noting that, in what amounts to a triumph of the tyranny of personal experience over sound judgment, CYC opposed the bill.  But they did offer an alternative: Take the decision away from the judges entirely and give it to the children.  Under CYC’s proposed amendment, the child whose case was at issue would decide if the court hearing would be open or closed.

            I have not read any news account explaining how this would work.  Would there be a hearing in every case?  At what age would a child be granted this power?  16?  Eight?  Four?  What if siblings are involved in the same case and they disagree?  

            But the problems with this go way beyond the purely practical.  For starters, it would make California dependency courts even more secret than they are now, since under current law a judge can override the presumption that hearings are closed.  As Assemblyman Feuer pointed out, under this proposal, a party to the proceeding would have more power than the judge.

            What’s really alarming is how many adults rushed to embrace this abdication of adult responsibility.  Posting on the website of the San Jose Mercury News  Connie Robbins writes: “I can't understand why the amendment to include the child in the decision to make it public or not is going too far? Why should an outsider have a more ‘legitimate’ interest?” Writes Matt Anderson: “Interesting how someone can say that the opinion that mattes the most, that of foster youth, goes too far.”


Well, for starters, the whole point of the court process is to determine facts, get at truth and obtain a decision from someone who is neutral and therefore less likely to be biased – in other words, an “outsider.”  The entire process becomes a sham, and becomes dangerous, when the power to make vital decisions is ceded to one of the parties. 

            In criminal trials, even when the victim has been raped, and, for that matter, even when that rape victim is a child, the victim does not decide if the public will be barred; and neither does anyone else with a vested interest.  All such trials are presumed open, with far less leeway to close them than the California bill would have allowed in dependency court.

That’s because any potential harm from openness is vastly outweighed by the potential sloppiness and, sometimes, corruption likely to invade the criminal justice process when trials are secret.  So prosecutors can’t close the courtroom and neither can defense attorneys or the accused, or even victims.  Only a neutral arbiter, - an “outsider” known as a judge - can do that.

It makes no more sense to cede the decision on opening or closing a hearing to a child than it does to simply dispense with the whole trial and have the child decide the outcome of the case.


But the most revealing comment supporting CYC’s proposed amendment is from a clinical psychologist, Dr. Greg Manning, who condemned Assemblyman Feuer’s opposition to it, declaring that  “The Senator’s [sic] position wrecks [sic] of Adultism.”

            I confess I’d never heard that term before (and now that I have, I can safely say it’s not going to do anything to disabuse the rest of the nation concerning certain stereotypes about California.)

I’m hoping Dr. Manning and those who share his views will be able to get in touch with their “inner adult.”  Because a little good old fashioned “adultism” is exactly what is needed here.  That’s because you don’t need a clinical psychology degree to notice that  children are not adults.  There is a reason that 12-year-olds can’t get married, 14-year-olds can’t drive, 15-year-olds can’t vote and 16-year-olds can’t drink alcohol legally.  It involves hopelessly adultist concepts like maturity and judgment.

That doesn’t mean young people shouldn’t play a strong role in advocating for what they want and trying to persuade a judge that they’re right.  Indeed, that role should be much stronger than it is now in most courtrooms.

            For example, typically children are assigned “law guardians” to represent them.  But they don’t really. The law guardian argues for what the guardian thinks is best for the child, even if the child disagrees.  That’s wrong.  I believe strongly that, starting at the age at which they can make a rational decision, a child’s lawyer should act like a lawyer and argue vigorously for whatever the child wants – even if the lawyer does not personally think that’s in the child’s best interests.

But that’s not because I think the child necessarily should get what he wants.  Rather, it’s because a just outcome is most likely when all sides have someone making a vigorous case for what they want – with a neutral arbiter, an outsider, actually making the decision.

I can think of few adult acts more irresponsible than leaving what might be literally a life or death decision to a child – whether that decision involves sailing around the world even if you’re likely to die or whether the court hearings where your fate is to be decided should be open or closed.  Children should make clear what they want, and they should have an advocate arguing vigorously for that position.  But deciding if a hearing will be open to the accountability that comes with scrutiny or closed because of the hypothetical embarrassment to the child is a decision best made by someone who is neutral and someone who is an adult.

Adultist? You bet.