Tuesday, July 5, 2011

Foster care in America: Sometimes it takes a lawsuit to save a child

In a previous post to this Blog, I took issue with an attempt by Bryan Samuels, who runs the federal government’s Administration on Children Youth and Families, to try to let the foster care system off the hook for the dismal prospects of so many former foster children.

Fortunately, Samuels now has a new boss who believes in accountability.

In that same interview, with Youth Today, Samuels made comments that were nearly as absurd concerning class-action lawsuits to reform child welfare systems.  He appears to suggest that these lawsuits really aren’t needed anymore because now the federal government has its own process for evaluating child welfare systems, known as Child and Family Services Reviews (CFSRs).

Yeah, right.

As it happens, one of the very few issues on which there is near-unanimity in the child welfare community is the consensus that CFSRs are c-r-a-p.  Some of the reasons are described in this publication on our website.  Samuels himself acknowledges how bad the CFSRs are in response to the very next question from Youth Today.

No one has been more critical than I of the group that so arrogantly calls itself “Children’s Rights” and their McLawsuits.  But the notion that somehow a CFSR process, even a reformed CFSR process, could have brought about the transformation of the Alabama child welfare system into, relatively speaking, a national model is an act of self-delusion.  As The New York Times documented in this story, that transformation took a lawsuit, R.C. v. Hornsby.  (The suit was brought by the Bazelon Center for Mental Health Law.  Their legal director, Ira Burnim is a member of NCCPR’s volunteer Board of Directors.)

Similarly, New York City wasn’t about to stop taking children from battered mothers just because expert after expert says that’s a terrible thing to do to children.  And, needless to say, that issue isn’t covered by the CFSRs.  Once again, it took a class-action lawsuit, Nicholson v. Scoppetta.  (Co-counsel for that one was NCCPR’s volunteer Vice President, Carolyn Kubitschek.)

It is particularly absurd to read such a comment from Samuels who, before taking his present job, ran the child welfare system in Illinois.  No state has benefitted more from aggressive class-action litigation. 

●There is no way federal regulators would have broken the iron grip of private agencies on the Illinois system and changed financial incentives for those agencies – reducing the foster care population from over 50,000 to under 16,000.  That took a lawsuit, brought by the Illinois Branch of the American Civil Liberties Union, B.H. v. Coler.

●There is no way Illinois would have volunteered to provide concrete help to families so their children are less likely to be taken when family poverty is confused with neglect.  That took another lawsuit – Norman v. Johnson, brought by the Legal Assistance Foundation of Chicago.

●It took still another lawsuit, Dupuy v. McDonald, to provide a bare minimum of due process for families – and children – trapped in the Illinois central registry of alleged child abusers, problems Samuels whitewashed in that same Youth Today interview. 

The lead plaintiff in that suit was a child who was, herself, listed as a child abuser because she’d pulled up the pants of some children playing “doctor” in her parents’ day care home. For months she was exiled from her own home from 7am until 9pm; since that was a condition of her parents’ continuing to earn a living. At one point she tried to kill herself – all because of a listing in a central register.  Good thing some good lawyers at the Family Defense Center had a problem with that, since apparently Commissioner Samuels does not.
And because lawsuit settlements usually come with independent court monitors we know that in both Alabama and Illinois, child safety has improved.

Of course these suits also have one key element in common – they were not brought by “Children’s Rights.”  But even CR’s suits occasionally are helpful, particularly when other groups get them to craft better settlements than anything they come up with on their own, as in New York City and New Jersey.  Their other suits sometimes lead to slight improvements, if only because of the publicity they get.

The key problem with CR is that their litigation has been getting worse – and they crossed a bright line in Michigan, where their litigation has made a bad system worse.

But that doesn’t mean we can simply replace all such suits with an idiotic federal evaluation process and expect that America’s vulnerable children will live happily ever after.