Wednesday, July 19, 2017

It took two federal agencies to stop Massachusetts from illegally destroying a family. Now Oregon is trying to do the same thing

The two agencies found that Massachusetts violated the Americans with Disabilities Act. So what about Oregon?

A columnist for the Oregonian has a very good column this week about how the Oregon child welfare agency has torn two children from a loving couple because the agency deems the i.q. scores of the mother and father insufficient.

There is no finding that either child was ever abused or neglected (the second child actually was confiscated at birth). In fact, the only trauma they’ve suffered is being torn from their parents – among the worst traumas any child can endure. And of course, they face the high risk of abuse in foster care itself – a risk that probably is especially high in Oregon.

The behavior of the Oregon Department of Human Services (DHS) – harming the children in this way - is morally reprehensible. A good case can be made that it’s also illegal – a violation of the Americans with Disabilities Act.  We know this because the Department of Justice and the Department of Health and Human Services said so in a scathing letter to Massachusetts child welfare officials about a remarkably similar case in that state.  I wrote about that case for a report-in-progress. Because of the Oregon case, I’m posting that section of the report below.

Like Oregon, Massachusetts is enamored of a take-the-child-and-run approach to child welfare. Both states tear apart families at rates well above the national average.

So the next time child welfare leaders in either state whine about overwhelming caseloads and how that supposedly stops them from doing their jobs well, some reporter might want to ask them why they waste precious resources destroying families such as these.

This is what happened in Massachusetts:

            Here’s what a nationally-recognized expert on parenting with a mental disability said about Sara Gordon,* a parent with a mental disability:

            Clearly, [Ms. Gordon] is a loving, caring, and conscientious mother who is willing to do whatever it takes to have her daughter in her life.  She is capable of learning new skills and has done so through her visits with [her daughter, Dana], despite them being infrequent.  . . . It is important to remember that all parents receive help at some time, and [Ms. Gordon] should be no exception.  There is no discernible reason revealed by this assessment that [Ms. Gordon together with her own parents] do not have the ability to care for her child safely.

            The expert was not alone.  As a federal investigation revealed:

multiple community-based service providers, two experts who have completed parenting assessments, Dana’s court-appointed attorney, and even a majority of DCF’s most recent Foster Care Review panel all have agreed that a family-supported parenting plan would be appropriate.  In this matter, a family-supported parenting plan means that Dana would be placed with Ms. Gordon and her parents in their home and Ms. Gordon’s mother (Dana’s grandmother) would maintain guardianship of Dana.

But none of this mattered to the Massachusetts Department of Children and Families.  They saw none of the love between Sara and Dana and none of the support available to Sara from her own parents, with whom she was living.  As New York Magazine reported in a story on the case, they saw only her developmental disability – an i.q. of 70.

            Apparently based on little more than a caseworker’s self-proclaimed “intuition” and “vibe” and prejudices about the developmentally disabled, DCF tore the infant from her mother and placed her with strangers. 

            Seven months later, they decided to try to separate the family forever, changing the “goal” in the case to adoption and moving to terminate Sara’s parental rights.

            Even when the grandparents offered to assume legal guardianship, DCF would not relent.  The excuse, according to the New York Magazine story: Long before, Sara herself had been taken from them because of her father’s alcoholism.  He’s been sober for 18 years.

            We know about all this only because, thanks to the family’s extraordinary determination, some dedicated advocates, and some good luck, the case caught the attention of the U.S. Department of Justice and the U.S. Department of Health and Human Services.

            After a 19-month investigation, the two agencies issued a scathing 26-page letter

The letter did not look into whether DCF had violated child welfare laws – though given that a widely-ignored federal law requires child welfare agencies to make “reasonable efforts” to keep families together, the agency almost certainly did.

Rather, they found that DCF had violated the Americans with Disabilities Act.  According to the letter:

[F]or more than two years, DCF has denied Ms. Gordon and Dana the opportunity to be a family and now threatens to deny them that opportunity permanently.             Instead, DCF has continually asserted that Ms. Gordon poses a safety risk to Dana if she were to parent on her own, without consideration of any supports.  However, DCF has ignored the fact that Ms. Gordon is not proposing to parent on her own without any supports, has ignored its own ability and obligation to provide such supports, and has repeatedly ignored the objective evaluations of various clinical and service professionals … who have reviewed this case and found that Ms. Gordon’s plan to parent Dana with her family’s support is appropriate. 

            DCF listed several specific concerns about Sara Gordon’s ability to be a parent: She had difficulty with feedings and diaper changes. On a couple of occasions she walked away from the changing table.  On a couple of occasions, Sara was unable to comfort Dana when she cried.  Sometimes Sara bumped Dana’s head.

            But, the federal agency letter notes, DCF set a far lower standard for the foster parents – the parents DCF wanted to adopt Dana.  According to the letter:

DCF was aware of, and dismissed, numerous injuries to Dana, including a black eye, bumps, bruises, cuts, and burnt hands that occurred during the time in foster care.  When Dana was only a few weeks old, she was left unattended on a table in the foster home.

            The federal investigators understood that the reasons DCF was giving for keeping the family apart were just excuses:

DCF clearly presumed from the initial opening of its case that Ms. Gordon lacked the capacity to parent Dana due to her developmental disability without consideration of appropriate supports and services. … During the Departments’ interviews of DCF staff, one investigator explained that his view of Ms. Gordon’s capacity to parent was based on his “intuition” and stating that “[w]hen you meet with someone, you get a vibe whether they are going to be able to do it or not.” [Emphasis added.]
                       The agencies concluded that this probably was not an isolated case, noting that
the violations in this letter highlight systemic failures by DCF to ensure social workers follow appropriate policies and procedures and have necessary training to perform their duties without discriminating on the basis of disability.
            Two other elements of DCF’s behavior are worth noting:

            ● DCF repeatedly stonewalled, stalling for months in response to requests for information from the federal agencies, and, in some cases failing to comply at all.

            ● When it came to information about the physical harm sustained by Dana in foster care, DCF may have attempted a cover-up. The federal agencies note that they asked for all records concerning Dana’s placement in the foster home, but they received none concerning her injuries.  When federal investigators interviewed DCF staff and asked specifically about a note that made a vague reference to these injuries, the records still were not provided.  Only when the federal investigators made a specific request about documents that appeared to be missing, were the documents noting these injuries finally made available.

Although the letters led to the return of Dana to her family, the high rate of child removal in Massachusetts suggests that DCF learned nothing, and reverted immediately to business as usual.

            But this was not just a case about disability.  The Gordon family is poor.  Had Sara Gordon come from a wealthy community and showed up at the hospital with a team of health aides who would live with her in a suburban McMansion, the hospital almost certainly never would have called DCF – and had they called, DCF almost certainly would not have taken away the child.

            As Sara herself told New York Magazine: “When you’re filthy rich, they don’t take your kids.”

* -The names of the mother and daughter have been changed.