Sunday, January 21, 2018

INDEFENSIBLE: Here’s the real message from a child welfare system in Upstate New York: 1. We’re supremely arrogant. 2. We hate accountability. 3. We want to stay that way.

Given a chance to replicate a model family defense program with a proven track record for reducing needless foster care, improving child safety and saving taxpayers money – at no cost to the county – metropolitan Rochester said no.

UPDATE, NOVEMBER 2023: Metropolitan Rochester now has a better class of politician.  They've accepted the grant and the program is up and running!


There is much more news and commentary on this issue:

The Rochester Democrat and Chronicle has an excellent story and an excellent editorial

The Daily Record, which first broke the story, has a follow-up.

The Daily Record also has an excellent op-ed column from Michele Cortese, executive director of the Center for Family Representation.

WXXI Public Radio also has a very good story.


And one more excellent story, from Rochester City Newspaper

In the 1980s, when I was a reporter in Rochester, N.Y.,
 the Chamber of Commerce used this slogan.
I've updated it slightly to reflect current reality.


● More than a decade ago, New York City pioneered a model of family defense in child welfare cases. Impoverished families got a defense team including a social worker and a parent advocate as well as an attorney with a reasonable caseload. 

● In the years since, foster care was curtailed, so children were spared enormous needless trauma from wrongful removal and from being moved from foster home to foster home. They also were spared from the high risk of abuse in foster care itself.  At the same time, child safety improved. The model was so successful that the city child protective services agency supported it, and the city repeatedly expanded it. 

● A similar program in Washington State has earned similar support from “all sides” and achieved similar results.

● So when New York State offered grants to Upstate counties interested in replicating the New York City model, the Monroe County (metropolitan Rochester) Office of Public Defender applied.  All of the county’s family court judges supported the application.

● The county won the grant. But then, county officials stepped in and refused to accept the money. In other words, they turned down a chance to help the county’s children with a proven approach – at no cost to the county.

● As one family court judge pointed out, the plan would have done no more than give poor people the same access to justice that the rest of us already have in these cases. But for the Monroe County child protective services agency, that was too much to bear.

In most of the country, when children are torn from impoverished families, those families are almost literally defense-less.

In some states, there is no right to a public defender at all.  And in most states, family defense consists of a grossly overworked public defender or private attorney on a shoestring contract who just met his client outside the courtroom five minutes before the first court hearing – a hearing that often takes place after the child already is in foster care.  (That’s because, contrary to what they so often claim, child protective services agencies and/or law enforcement can take away children on their own authority – and they often do.)

Naturally, most child protective services agencies like it that way. The judge is reduced to wielding a rubber-stamp instead of a gavel; the agency itself becomes the real judge, jury and family executioner.  The agency can make little case or no case, offer no real help to families, and stumble and bumble along as it pleases.

But, as with so many times these agencies take a swing at so-called “bad parents” – the blow lands on the children.

The lack of meaningful defense is one of the main reasons so many children are taken needlessly from everyone they know and love, often when family poverty is confused with “neglect,” and consigned to the chaos of foster care.  That helps explain why two massive studies found that, in typical cases, children left in their own homes fare better even than comparably-maltreated children placed in foster care.  Other studies document the high rate of abuse in foster care itself.

So consider the paradox: Child protective services agencies routinely claim – again, falsely -- that “we don’t take away children – a judge has to approve everything we do.”  But those same agencies are terrified of anything that would actually let those judges hear all sides of the story and make a fully-informed decision.

Indeed, the extent to which a child protective services agency objects to letting judges actually hear all sides of the story – that is, the extent to which it fights meaningful family defense – is a good measure of just how arrogant that agency is and how much it wants to avoid accountability. And that brings us to the child protective services agency in Rochester, New York and surrounding Monroe County.

As it happens, Rochester is where I did some of my first stories about the overreach of child protective services and the harm that does to children when I was a reporter for WXXI-TV, the public television station, and City Newspaper, the alternative weekly.  That was about 30 years ago.

A story last week in a regional newspaper for the legal community, The Daily Record, suggests things have not changed much.

The Record reports that, when offered a chance to replicate a proven model for high-quality family defense – a model shown to improve outcomes for children and save money, a model already in use for well over a decade elsewhere -- with the tab picked up by New York State – the county turned it down.

A little later, I’ll get to the excuses the county offered up for turning down this help (of which my favorite is the claim, which I must admit is true, that attorneys for parents would, in fact, represent parents).  But cutting through the b.s., what the county really is saying is this:

If poor people ever got the same quality of defense the middle class can buy for itself and if those poor people were able to challenge our lousy decisions, poor casework and meaningless cookie-cutter service plans we’d have to up our game. We’d have to stop taking away so many children needlessly, and provide real help to families.

The New York City experiment

This story really begins in New York City in 2000.  An advisory panel formed by the Annie E. Casey Foundation as part of a class-action lawsuit settlement sat in on Family Court hearings.  As they documented in a scathing report, they were appalled. They saw families railroaded, needless placements and judges so terrified of the city’s tabloid press that they admitted, out loud and on the record, that they rubber-stamped removals even when they felt the child protective services agency, the Administration for Children’s Services (ACS), hadn’t made a good enough case.

A member of that panel, John Mattingly, got the Casey Foundation to fund an experimental program in which the newly-formed Center for Family Representation (CFR) would provide high- quality defense counsel for a small number of families.

In addition to a lawyer with a reasonable caseload, each family would be assigned a social worker who could work with the family and craft alternatives to those cookie-cutter “service plans” churned out by ACS.  Often there would be a third member of the team, a parent advocate, someone who had been through the system herself or himself, and could guide and encourage the parents.

At first there was only CFR handling a limited number of cases in Manhattan. But after CFR proved itself and Mattingly became commissioner of ACS,* the city itself began funding parental defense.  Today, CFR and three other providers, the Bronx Defenders, Brooklyn Defender Services and Neighborhood Defender Services of Harlem provide this kind of defense counsel to about 90 percent of the impoverished families dealing with ACS in four of the city’s five boroughs.

Those who cling to stereotypes about everyone who loses a child to the system, believing them all to be sadistic brutes who torture children would, of course, find this upsetting. Those who know who really is in the system understand why this approach is so good for children.

In 2011, Brooklyn Defender Services produced this video about their work:

Brooklyn Defender Services also represented some of the families profiled in the landmark New York Times story about foster care as the new Jane Crow.

The Bronx Defenders was the subject of this story in The Nation

This model of family defense won an award from the New York State Bar Association, and it’s been recognized as a national model by the federal Administration for Children, Youth and Families.

Among the most important reasons for this success: Often these teams can get in early, instead of after the child already is in foster care, and much damage has been done.

As should be clear by now, this is not a matter of “getting bad parents off.”  The early intervention allows the defense team to prove families innocent when they have, in fact, done nothing wrong.  (Yes, I said prove families innocent. In the real world of child welfare, the burden of proof is reversed.)  The team can craft safe alternatives when there is a problem but foster care isn’t necessary, and come up with better ways to safety reunify families when it is.

It’s needed because, as the New York State Office of Indigent Legal Services put it:

Unfortunately, experience has shown that agencies too often wield their emergency removal power in situations where such drastic state action is unnecessary, and without first attempting to address the issues that brought the family to the agency’s attention.

High-quality family defense is one of the reasons that, even with setbacks over the past year, New York City has a relatively low rate of child removal – and, during the years since this model expanded citywide and entries into foster care declined, key measures of child safety improved.

And one thing more. Foster care is more expensive than safe, proven alternatives. CFR alone estimates it’s saved taxpayers $37 million in reduced foster-care costs since 2007.

Washington State also says yes

New York City is not alone.

Washington State started a program of high quality family defense in 2000.
Between 2000 and 2003, of 144 cases in the program in which families were reunified, not one was brought back to court.

“These children aren’t coming back,” said then-Washington State Supreme Court Justice Bobbie Bridge, a supporter of the program, “and we do get them back when we make bad reunification decisions.”

Even the state Attorney General at the time, who had to face the better-prepared lawyers, supported the project and wanted it expanded.

A 2011 evaluation found that in counties that have this kind of representation children are reunified more quickly. And when reunification really isn’t possible, guardianship and adoption occur more quickly as well.

But Monroe County says no

So when New York State’s Office of Indigent Legal Services offered a competitive grant to Upstate counties to test the model, Monroe County’s Office of Public Defender, which has a long and distinguished history in the field of family defense, applied.

Monroe County certainly needs it. Though the county has made real progress in reducing needless foster care, in 2016, the last year for which comparative data are available, Monroe County still took away children at a rate more than 20 percent higher than New York City, when entries into care are compared to the number of impoverished children in both places. For reasons discussed below, the Monroe County record probably was worse in 2017. And, as the Times story documented so well, there remains plenty of needless removal in New York City.

Monroe County won the grant.  Everything was all set to go.

Until county officials stepped in and turned down the money.  It’s not clear exactly who made the decision, but it appears to have been the County Executive, Cheryl Dinolfo. Presumably she was acting on advice from the county child protective services agency.

But she was acting against the advice of all of the county’s family court judges.  Judge Joan Kohout called the initiative “a great idea” adding: “I can’t imagine why they wouldn’t accept this grant, frankly.”

But I can.  One possibility: There was a high-profile death of a child “known to the system” last year, and the child protective services agency has been under intense pressure as a result. Dinolfo may be afraid of doing anything that political opponents could portray as “soft on child abusers.” (In fact, such deaths typically set-off foster-care panics, sharp sudden spikes in needless removal of children. So improved family defense actually is needed more now than at any time in recent years.)

An aversion to accountability

But I think the reasons go deeper – to the typical child welfare agency aversion to any kind of accountability.

What we do know is that the official reasons offered up by the county are pathetic excuses, an attempt to conjure up false images of vicious technicality-wielding lawyers scaring innocent children and hiding the crimes of child abusers.

The Daily Record  quotes a statement from county spokesman Jesse Sleezer, in which he claims that the program

would have injected lawyers into cases of abuse and neglect much earlier, potentially intimidating child victims and limiting access by CPS workers who would otherwise assess and monitor the child’s safety.

Well, for starters, as noted above, they’ve been doing this in New York City since 2002, that hasn’t happened, and the city child welfare agency is so comfortable with the program that it keeps expanding it.

Monroe County Executive
Cheryl Dinolfo
And throughout the modern history of child welfare, from the notorious McMartin Preschool case and others like it, all the way to the last major case to make it to the U.S. Supreme Court (in which my organization’s volunteer vice president served as pro bono counsel for the family) those most prone to intimidate children have been caseworkers, law enforcement and “therapists” – when the children didn’t give the answers they wanted to hear.

But even were this the first program of its kind, and even had been no track record of success elsewhere, Sleezer’s claim would be false on its face.

As Judge Kohout points out, these lawyers would have no magical powers.  It would just put the poor on something closer to an equal footing with people of more means.  Said Judge Kohout: “This program would provide the same right and the same access to legal advice to poor parents.”

And that raises a more fundamental issue: If the child protective services agency is “gaining access” in ways that would be stopped by a lawyer for a middle-class family, then chances are what the agency is doing to poor families is, at a minimum unethical and possibly illegal.  So does Monroe County Child Protective Services want to stop poor people from having higher-quality family defense so it can break the law?

Judge Kohout also understands the real reason why it’s a good idea to use this model early in a case: “There would be great benefit in avoiding dragging people into court and stigmatizing them by giving them that help up front.”

Mr. Sleezer’s other objection

Sleezer offered up one other objection:

The attorneys involved in this pilot program would serve only one client — the parent accused of abuse — and would not have any professional responsibility to serve the best interests of the abused child.

Aside from the fact that the overwhelming majority of parents are not accused of abuse – the charge is neglect – Sleezer is, in one sense, right.  Attorneys appointed to represent parents do, in fact, represent parents. You know; sort of like the way, in criminal cases, defense attorneys don’t also work for the prosecution and prosecutors don’t also represent the accused.

Indeed, by Sleezer’s logic, child protective services agencies shouldn’t be represented in court either, since those attorneys represent the agency’s interests. 

And it is arrogant in the extreme to assume that the interests of parents and children are at odds from the get-go. In fact, that’s part of what judges are there to determine.  What parents’ lawyers really are doing is defending families. In the process, they defend children from all the harm of needless foster care.

Determining whether the course of action recommended by those family defenders, or that recommended by lawyers  representing any other party, should be followed is what we have judges for.

The only a chance a judge really has to sort through competing claims and figure out what’s really best is if all sides get a chance to make the best possible case for their position.  Perhaps that’s why, as noted above, all of Monroe County’s family court judges supported the grant application. 

I believe the technical term for this approach, in which all sides make their best case and a judge issues a ruling, is “justice.”

Apparently, that’s exactly what Mr. Sleezer and his bosses are afraid of.

*Yes, that is the same John Mattingly I often criticized on this blog when he ran ACS. But whatever his failings, he deserves enormous credit for helping to create and expand high-quality family defense.