Monday, October 31, 2011

Foster care in South Dakota: NPR stories get the ACLU’s attention

            This will give you some idea of the power of NPR’s three-part series on the destruction of Native American families by child protective services in South Dakota: The stories were a 2 x 4 so big they even got the attention of the state chapter of the American Civil Liberties Union.

            That has the potential to jump-start efforts to stop the practices exposed by NPR.  Up to now, the small and underfunded Lakota People’s Law Project has stood virtually alone in fighting for the rights of South Dakota’s Native Americans under the Indian Child Welfare Act.  (Their director has posted a blog to answer the many people who have asked how they can help as individuals.)

            One would think ACLU involvement would be a no-brainier: A state tears apart families at one of the highest rates in the nation, repeatedly confuses family poverty with neglect and tramples on a federal law designed to protect Native Americans.

            But as I’ve noted often before on this Blog, too many of my fellow liberals forget everything they claim to believe about civil liberties as soon as someone whispers the words “child abuse” in their ears. That’s a major reason why the traditional due process protections Americans take for granted in other fields of law are almost non-existent in child welfare.  (For details see our Due Process Agenda).

            There is no clearer example of this myopia than the behavior of the ACLU, nationally and in most states.  Typically, when it comes to the rights of children to live with their own families, the ACLU is AWOL.  NCCPR’s founder, Elizabeth Vorenberg, resigned from the ACLU’s National Board over its failure to defend the civil liberties of families facing the unchecked power of child protective services.

            The child welfare field is filled with issues that would seem to be obvious choices for ACLU litigation: Secret trials, lack of adequate (or sometimes any) defense counsel, searches and seizures without warrants, and on and on. 

Refusing to defend children's Fourth Amendment rights

            But consider what happened this year when the first major child welfare case in 21 years, Camreta v. Greene, reached the U.S. Supreme Court.  As we explain on our special website about the case:

The child was only nine years old when she was called out of her classroom and forced to endure a two-hour interrogation by a male caseworker for the Oregon Department of Human Services because DHS had received a false allegation of sexual abuse.  Sitting silently in the room during the entire interrogation was another man - an armed deputy sheriff. 
            The child repeatedly denied any abuse, only to be browbeaten by the caseworker, who kept insisting she was giving the wrong answers while questioning the little girl about the most intimate details of her life. …  The experience so traumatized the child that she became physically ill.
           The child sued and the Ninth U.S. Circuit Court of Appeals agreed that her Fourth Amendment right to be free from unreasonable search and seizure had been violated.
            NCCPR’s Vice President, Carolyn Kubitschek represented the child. The Family Defense Center co-ordinated an extraordinary effort leading to the filing of 18 amicus briefs by 70 individuals and organizations in support of this child’s Fourth Amendment rights.

           Several of the groups, including the Legal Aid Society Juvenile Rights Practice,  Lawyers for Children, and the Children’s Law Clinic at Penn State University specialize in representing children in cases involving alleged child maltreatment.  All of them understood how destructive it is to a child to deny that child her rights under the Fourth Amendment.

            But not the ACLU.  The ACLU remained silent.

            It is much the same at the state level.  Over and over, families have told me about how they sought help from the ACLU in their state and were turned away.  Sometimes it’s even worse.  

In Indiana, the state chapter of the ACLU actually sued to block modest reductions in pay for foster parents.  Even if one believes that foster parents somehow should be exempt from the sacrifices being made by everyone else in a recession, (which can only lead to more cuts elsewhere, such as help for birth parents) how exactly is that a civil liberties issue? 

In Michigan, the ACLU did go to bat for the upper-middle-class white child taken from his parents after his father accidentally bought him Mike’s Hard Lemonade at a baseball game, and the redress they are seeking will help all families.  But they did nothing to help Maryanne Godboldo’s child, who is poor and Black, and was taken from her mother when she exercised her legal right to stop giving the child psychiatric medication with severe side-effects.   Godboldo and her grassroots allies had to win that case without the ACLU’s help.

Certainly, there are exceptions.  The ACLU of Pennsylvania repeatedly has championed the rights of children against the power of CPS agencies (their legal director is a member of NCCPR’s Board of Director).  And one of the class-action lawsuits that has helped dramatically improve child welfare in Illinois was brought by the Illinois ACLU.

Now, the South Dakota ACLU is stepping in to help champion the right of Native American children to their own families.  But the Indian Child Welfare Act is a federal law, and, as NPR notes, it is being violated in 32 states.  Where is the National ACLU?  Doing what it usually does: Exercising its very own right to remain silent.

Pride of the Yankees

Part of the explanation lies in an unfortunate decision made by the ACLU when it set up a Children’s Rights Project in 1979.  They hired as its director the person who was already running a similar project for the New York Civil Liberties Union – Marcia Lowry.

One of Marcia’s earliest suits in New York was an attempt to bolster the rights of foster parents to prevent children from being transferred to other homes – including the homes they came from in the first place.   Real champions of civil liberties, like Louise Gans, who then was with Community Action for Legal Services, were furious.  As Nina Bernstein writes in her brilliant book, The Lost Children of Wilder: The Epic Struggle to Change Foster Care:

For Gans and many of her colleagues, the true road to children’s rights lay in defending poor parents against the state’s abuses of power.  Gans believed that poor families were routinely misled and mistreated by foster care agencies – their children unnecessarily removed, their visits curtailed, and reunification wrongfully discouraged.  More passionately that most, she felt that legal reform efforts should concentrate on changing the state’s s treatment of biological parents.  Yet here, instead was CLU litigation that risked establishing some kind of constitutional right for foster parents – another weapon agencies could use against poor families …
Gans and other Legal Services people felt embattled.  Their clients had terrible problems, and their staff and resources were always inadequate to help. By their standards the CLU was rich.   That made it all the more galling that with a million lawsuits to choose from, Lowry should bring one that in their view threatened to make things worse instead of better.

Or as Danny Greenberg, then Managing Attorney for MFY Legal Services put it in a confrontation with Ira Glasser, then executive director of the NYCLU (and later executive director of the ACLU):

My God, Ira.  Think of the class issues in this.  You think of yourself as a Brooklyn Dodger fan, a supporter of the underdog.  Only a Yankee fan could bring a lawsuit like this.  The Yankees would love this lawsuit.

Today, of course, Marcia Lowry still is the pride of the Yankees.

She actually left the ACLU to create the group that so arrogantly calls itself “Children’s Rights” because even Ira Glasser’s liberalism was too much for her.  She told the Chronicle of Philanthropy that too much of what the ACLU did was tied to a “liberal agenda.”  Leaving the ACLU also may have made her more appealing to Carl Icahn, the corporate raider who once chaired her Board of Directors.

So no one should be surprised at CR’s response to NPR’s revelations about what’s being done to Native American families in South Dakota: