Sunday, April 21, 2019

The last thing Oregon child welfare needs is another McLawsuit

The track record of the group bringing the suit suggests there’s a good chance it will make the state’s horrible child welfare system even worse.

            Never assume that things can’t get worse for the vulnerable children of Oregon.  The horrors of the Oregon child welfare system have been documented extensively. The real reason for those horrors, the state’s obscene rates of taking away children and trapping them in foster care – is mentioned only occasionally, except on this blog, of course.

            And now, compounding all the other problems, the system is on the receiving end of a lawsuit that stands almost no chance of making the system better – and a good chance of leaving it even worse.

            The lawsuit was brought by A Better Childhood, a group that brings these sorts of McLawsuits across the country.  Marcia Lowry founded A Better Childhood (ABC) after leaving another nearly identical group she founded (with a lot of help from corporate raider Carl Icahn) - the group that calls itself Children’s Rights (CR). That group brings the same sorts of McLawsuits - though at least with CR, there’s been a little bit of improvement in the years since Lowry left.

            The problem is not that the Oregon system doesn’t deserve to be sued.  Of course it does; it’s every bit as awful as this lawsuit says it is, and then some.  The problem is not that it’s a bad idea to sue failing child welfare systems. It’s an excellent idea. But you have to bring the right kind of lawsuit.  This isn’t it.

           Like the other McLawsuits filed by Lowry at ABC and before that at CR, this is a lumbering document that seeks puny bureaucratic remedies, a caseworker hiring binge and, of course, another foster parent recruitment campaign.  If Oregon is lucky this will simply create the same lousy system only bigger. That’s bad enough.  But in several cases these lawsuits actually have made systems worse.

            That’s because Lowry has shown no interest in keeping children out of the system in the first place, only in “fixing” foster care once they’re already in.  But as the repeated failure of her lawsuits and the success of an alternative approach have proven, the only way to fix foster care is to have less of it. 

           So, in an interview, Lowry declares that "The big problem is that Oregon has failed to develop specialized placements or even enough placements for kids in care.” 

          That's wrong. 

          The big problem is that Oregon takes away too many children – tearing them from their families at a rate more than 40 percent above the national average and holding them in foster care at a rate  more than 65 percent above the national average.

          If Oregon simply took away children and held them in foster care at a rate no worse than the national average, the number of children in "placements" would plummet and the "shortage" of placements would disappear.  

          Oregon does have enough placements – but many of them are being taken by children who don’t need to be in foster care.  Even the lawsuit itself makes that clear.

Judging by the limited information in the lawsuit Complaint, in several cases, the named plaintiffs in this suit could, in fact, have remained safely in their own homes had the families received the right kinds of help.  Yet even if this lawsuit is completely successful there is nothing in it that would make it any more likely that this help will be provided to children like them in the future.

But perhaps the best measure of how out-of-touch Marcia Lowry is with best practice in child welfare, and how alarmed advocates for children are about the damage she can do, came when she brought the latest in a long line of lawsuits against the system in in New York City.  The city is unusual in the fact that there is a network of high-quality providers of counsel for parents and for children.  Those providers, the parents’ lawyers and the children’s lawyers – came together, standing united to oppose her pointless, harmful lawsuit.

Full details concerning how these McLawsuits fail are in NCCPR’s publication The Children Wronged by “Children’s Rights.”  But here’s a brief overview of what’s happened across the country.

The track record

            ● In Michigan, Lowry’s lawsuit settlement requires the state to cut caseloads – just as is demanded in the Oregon suit.  But instead of requiring Michigan to do that by controlling needless removal of children and bolstering programs to keep children out of foster care, the settlement allowed Michigan to slash its already meager funding of prevention and family preservation in order to fund a child abuse investigator/foster care worker hiring binge.  And that’s exactly that the state did.

Michigan also cut basic assistance to poor families – and said it wasn’t a problem because they also were hiring more child abuse investigators (thanks to the settlement).

The Michigan settlement also has led to the expulsion of hundreds, perhaps thousands of children from the homes of grandparents and other relatives because those relatives were unable to meet pages of hypertechnical licensing requirements, many of them unrelated to health and safety.

● In Tennessee, CR successfully strong-armed the legislature into repealing a law that took a tiny step toward balancing the profound incentives judges face to take children needlessly with a small incentive to think of better options.  CR’s tactics included a lawsuit that raises serious questions about how they chose the children who served as “named plaintiffs.”

            ● In Georgia, CR sought to undermine alternatives to full-scale child abuse investigations that have reduced entries into foster care and demonstrably improved child safety.  Indeed, the monitor for CR’s own settlement in Georgia declined to help CR in this effort.

            Also in Georgia, Mother Jones reports, the state did what Michigan did: "cut spending on child care and put the money into child protective services in the wake of a lawsuit against the state over the mistreatment of children in foster care."

● In Massachusetts, it appears that several of the “named plaintiffs” in CR’s McLawsuit were children who could have remained safely in their own homes had the right kinds of help been provided.  But the lawsuit said nothing about providing that help.

And now, Oregon

            The same is true in the Oregon suit.

            ● In the case of the Oregon children the suit calls Wyatt and Noah, there was no allegation that either child was abused. Rather, there was allegedly drug abuse in the home and the father was charged with domestic violence against the mother. In other words, the children were torn from their mother because she was, herself, a victim of domestic violence.  In New York, that would be illegal – because it is exceptionally harmful to children.

            It’s illegal because of a class-action lawsuit – done the right way.  (NCCPR’s Vice President was co-counsel for the plaintiffs.)

As a result, in New York City cases such as this are supposed to be handled by removing the abuser, not the children, and then giving the mother all the support she needs so she will never feel a need to turn to the abuser again.  (Of course, the city does not always live up to the settlement, but the system has improved significantly since implementation began.)

But does Marcia Lowry’s lawsuit call for stopping Oregon DHS from taking away children because their mothers have been beaten? Of course not!

            ● In the case of Kylie and Alec, the issue was the mother’s alleged neglect and substance abuse.  But DHS actually admits it took away the children “because DHS was unable to locate a substance abuse program for her.”

            So does the Oregon lawsuit’s list of remedies include demanding substance abuse treatment on demand so no children will ever again have to undergo what happened to Kylie and Alec for lack of drug treatment?  Of course not!

            ● A cascade of horrors for Naomi began when she was taken away because her father wouldn’t allow her to receive therapy for mental health problems.  If the description in the lawsuit Complaint is correct, there is no question she needed the therapy.  There also is no question that, even without the therapy, the state of Oregon put her in far more danger.  Indeed, were there a deliberate, calculated plot to traumatize this child, (and, for that matter, the other named plaintiffs) they plotters could not have done better than Oregon DHS did.

            And the father was not the only option.  Naomi asked to live with her mother in Idaho. The court refused.  When Naomi ran away and went to Idaho herself – to live with her mother – she was forced back to Oregon.

            So, does the lawsuit include demands that Oregon beef up Wraparound services, in which therapy and other help is brought directly into the home, and everyone is trained to engage with entire families - so that, in cases like this, parents would be far more likely to accept the help?  Of course not!

            ● And then there is the story of Norman, who was taken from his father.  Only in the last paragraph of the description of what happened to Norman does the lawsuit let us in on the fact that they are now hoping that, after Norman “ages out” of foster care at age 18, he can be placed with his mother.  Why wasn’t that ever considered before? The lawsuit doesn’t say. It does mention, however, that the mother had substance abuse and housing issues.

            So, does the lawsuit demand that Oregon address family housing problems instead of tearing apart families?  Of course not!


There is a far better way to sue a child welfare system. The Alabama lawsuit, R.C. v. Hornsby emphasized rebuilding the system to emphasize safe, proven programs to keep children together.  (The suit was brought by the Bazelon Center for Mental Health Law whose legal director is a member of NCCPR’s Board of Directors.)  Though there’s been backsliding since this New York Times story was written,  this more recent account, from the Arizona Daily Star makes clear that Alabama is still, relatively speaking a national leader in child welfare.

            You can get a good sense of the difference between innovative litigation that works and a Marcia Lowry McLawsuit just by comparing the “Statement of Principles” section of a typical McLawsuit to the comparable section of the Alabama suit.  You can do that here.

            And though Lowry’s Oregon suit mentions all sorts of other reports and even past lawsuits about that state, it omits the effort to bring the Alabama reforms to Oregon in the 1990s – an effort that failed largely for lack of an enforcement mechanism.  It’s all discussed in the epilogue to this excellent story from Oregon Public Broadcasting and the Salem Statesman Journal.

            So don’t let anyone tell you it’s not possible to use litigation to curb the needless removal of children from their families.  The Alabama suit and the New York City suit concerning domestic violence both show that you can.

Diversionary tactics

The whole Oregon lawsuit is written in a way that appears designed to steer people away from thinking in those terms – not that it takes much steering in Oregon, where, for example, the Oregonian has kept the issue of the state’s high rate-of-removal out of the discussion.

● Right off the bat the lawsuit describes children in Oregon foster care as “revictimized.”  In some cases, of course, it’s true.  But in others, children are not victimized until they are placed in foster care.

● In presenting a list of provisions of federal law Oregon allegedly violated, the lawsuit makes no mention of the requirement in federal law to make “reasonable efforts” to keep children out of foster care in the first place.  The Complaint mentions “reasonable efforts” only in the context of the need to “achieve permanency” after a child is in foster care. 

            ● Child welfare systems make terrible mistakes in all directions.  But while the complaint goes into great detail about the abuse suffered by children left in or returned to dangerous homes, it is vague about the circumstances in the homes of children who probably could have stayed in them with the right kinds of help.    

            The lawsuit also errs in claiming that the Oregon child welfare system is “underfunded.”  On the contrary, Oregon spends on child welfare at one of the highest rates in the country – a rate nearly 50 percent above the national average.

            Part of the reason for this is explained by the one useful purpose served by the entire lawsuit: It exposes the fact that Oregon’s practice of warehousing children in out-of-state institutions is even worse than we thought.  (See pages 57 to 59).  Ten Oregon children are warehoused at institutions run by a for-profit chain that’s so awful a financial analyst – yes, a financial analyst -- said that its very existence “makes the world a worse place…”

            But in child welfare, the worse the option, the more it costs.  These out of state institutions cost DHS anywhere from $275 to $803 per day per child.

            So no, Oregon child welfare isn’t underfunded. Oregon child welfare simply throws away money as it throws away children.

The local partner

            The one hope in all this comes from one of the local partners Oregon chose for this suit, Disability Rights Oregon.

            In the one and only news story I know of concerning this lawsuit that even mention’s Oregon’s high rate of removal, from the Oregon Capital Bureau, an attorney for Disability Rights Oregon at least shows DRO is aware of the problem, adding that his group sees the lawsuit as an “opportunity to transform” the foster care system.

            The problem is, in order to win a settlement that actually does this, DRO will have to fight not only the state, but also its own partner.

            The more likely result is a lose-lose situation for Oregon’s most vulnerable children.

If the lawsuit is thrown out of court, Oregon DHS will treat that the way Donald Trump treated the Mueller report –as “vindication” when it would be nothing of the sort.

            But if ABC wins or settles, expect decades of court hearings, 150-page monitoring reports that measure processes instead of outcomes, motions, counter-motions, and other pointless maneuvering, as the Oregon child welfare system gets bigger but no better. 

That’s best case.  Worst case, Oregon diverts funds from child abuse prevention family preservation and basic support for poor families in order to fund a worthless settlement.

            Marcia Lowry’s track record suggests she’s have no problem with that at all.