|Judge Ernestine Gray|
The full Washington Post story discussed in this post is available here.
Imagine if the presumption of innocence that is, at least in theory, at the heart of the criminal justice system were turned upside down. Suppose everyone hauled into court was presumed guilty – and had to prove their innocence.
As a practical matter that upside-down burden of proof is how the child welfare system works. Only instead of calling it “guilty until proven innocent” it’s sanitized behind phrases like “err on the side of caution.” But there is nothing cautious about tearing apart a family. When done needlessly, it is a profoundly reckless act that endangers not just the mental health of children but often their physical safety as well.
One judge in New Orleans, Louisiana, Ernestine Gray, understands this. So she has decided to actually apply the law. She’s demanding that the state child protective services agency, the Department of Children and Family Services, actually show evidence that a child would be unsafe in her or his own home. The judge also is putting into practice the stated values of the child welfare system itself. After all, how many times have we heard people in that system say: “We never take away children because their families are poor” or “We only use foster care as an absolute last resort.”
Since this is exactly the way they say it’s supposed to work, the child welfare establishment in New Orleans is thrilled with Judge Gray, right?
Of course not! The child welfare establishment is throwing a collective fit – appalled that families no longer have to prove their innocence.
I learned all this thanks to a very good in-depth story in The Washington Post by Richard A. Webster. Though I take issue with some of Webster’s premises, the story was a thorough, open-minded account by a reporter who took pains to reach out to all sides. While that should be the norm, in the journalism of child welfare, it’s still more of an exception. So my concerns notwithstanding, first I want to thank Webster for trying to uphold the highest standards of journalism.
What the story reveals
So much is revealed by this story, often unintentionally, that it’s worth examining in detail. I’ll begin with how Webster frames what the judge is doing:
While many judges often err on the side of caution, placing children into state custody until all of the facts can be sorted out, [Judge Gray] moved in the opposite direction.
In fact, as I noted above there is nothing cautious about what those other judges are doing. Because of everything we know about foster care, and the extensive research comparing outcomes for children placed in foster care to children left in their own homes in typical cases, (discussed in more detail below), we know that “placing children into state custody until all of the facts can be sorted out” is a profoundly reckless act, deeply harmful to children. (It is, however, the most cautious approach judges can take to protect themselves.)
Now let’s turn to the heart of the criticism of Judge Gray’s decision to follow the law. Webster writes:
In New Orleans, however, child advocates reacted cautiously. In the collective fervor to remedy the system, they fear the lives of hundreds of boys and girls are being endangered by returning them to families in chaos.
Virtually no data are available to allay their concerns.
Whenever I read something like that, I am reminded of what I was told by the head of an adoption agency – yes, you read that right – when I was a reporter 40 years ago: “The burden of proof should always rest with those who think children don’t belong with their families.”
So what is crucial here is that there is absolutely no evidence to support these so-called “child advocates’” concerns. They are just standard child welfare establishment fear-mongering.
The only data available suggest that child safety has improved. Webster writes:
Championing New Orleans’s low numbers is problematic. … The only available metric is whether a child reenters the system at some point.
By that standard, Gray’s strategy is working. The city’s reentry rate of 7 percent is slightly lower than the statewide average, according to DCFS. But everyone, including Gray, concedes that is an imperfect data point for measuring success. It requires a child to be re-victimized and for someone to notice the abuse or neglect and again contact protective services.[Emphasis added.]
First, championing New Orleans’s low numbers is only problematic in the world of guilty-until-proven-innocent. What cannot be legitimately championed is high numbers of removals, since there is no evidence that this improves child safety.
The measure of foster-care recidivism – the term for the data the story cites – can be problematic, but not in a way that invalidates its use to compare jurisdictions.
That’s because while it is true that no jurisdiction will discover every case of reabuse, there is no reason to think that the same statewide agency that trains workers the same way will detect a lower proportion of reabuse in New Orleans than elsewhere. So as a method of comparison within a single state agency, it is valid. And it is one data point more than those who prefer a take-the-child-and-run approach have got.
The harm of foster care
Webster does better than most reporters in pointing out something else: the mass of data we have on the harm of foster care. But he adds some premises that should be questioned:
Few disagree that the system is severely broken nationwide because of decades of mismanagement and inadequate funding. Instead of protecting children, it often traumatizes them further. They have poorer outcomes in education, employment, housing and early pregnancy, studies show. By 17, more than half will have been arrested, jailed or convicted, according to a University of Chicago study.
He’s right about the data, but the implication is that if only the system got more money and were better managed then these outcomes would change. They would – but not by much. One study, which found that in later life only one in five former foster children was doing well, also tried to calculate what would happen if the foster care system were made perfect. Their conclusion: Outcomes would improve – by 22.2 percent.
So instead of churning out walking wounded four times out of five a “perfect” foster care system would churn out walking wounded three times out of five.
Notice also the phrase “traumatizes them further.” That assumes all foster children were traumatized in their own homes. What Judge Gray understands is that sometimes the children are not traumatized until they are placed in foster care.
But the most damning evidence isn’t included in the story (not on purpose, I’m sure Webster just didn’t know about it). That evidence comes in the form of the many studies, including two that are massive in size and scope, that directly compare the outcomes in typical cases for children placed in foster care and comparably-maltreated children left in their own homes. Over and over these studies find that the children left in their own homes typically do better.
So, in fact, there isn’t just one data point – there’s a mass of comprehensive research showing that Judge Gray’s approach is better for children.
In contrast, Judge Gray’s critics have no evidence that her approach (also known as following the law) is dangerous for children. In fact, it seems, they don’t even have a horror story! (If they did, I’m sure they wouldn’t have kept it secret.) They don’t have one yet, that is. Sooner or later there is a horror story in every system. And if Judge Gray is still on the bench (she’ll reach mandatory retirement age in a year) you may be sure she’ll be scapegoated, notwithstanding the fact that jurisdictions that tear apart vastly more children have the same sorts of horror stories.
Gray understands all this. As the story notes:
The greatest threat of harm for most of the children who appear before her, [Gray] stresses, is being unnecessarily removed from their families.
“Foster care is put up as this thing that is going to save kids, but kids die in foster care, kids get sick in foster care,” she said. “So we ought to be trying to figure out how to use that as little as possible. ...”
Here again, Judge Gray has the data on her side. Study after study reveals rates of abuse in foster care far higher than shown in official figures, which involve agencies investigating themselves. The rate of abuse in group homes and institutions is even worse.
As the ironies pile up …
But now, back to Judge Gray’s critics:
Chabre Johnson remembers the “revolving door” she saw while a DCFS child welfare specialist. She and colleagues would respond to calls, discover evidence of either abuse or neglect, and remove children, only to take them home a few days later because Gray decided the case they’d built didn’t pass muster.
The ironies abound here. First, recall how in almost every story that even slightly criticizes child welfare decision-making someone will say: “We can’t remove children on our own, a judge has to approve everything we do.” Too often, reporters believe it.
Well, now the cat is out of the bag. Johnson admits that she and her fellow DCFS workers routinely removed children on their own authority – traumatizing them with a foster care placement that Judge Gray realized – days later - was unnecessary. (This is not unique to New Orleans, of course.)
But wait, it gets better.
In most jurisdictions, judges routinely approve child protective services agency decisions. Then the agencies say they must be right because those wise, independent judges are constantly approving what they do. But behold what happens when one judge starts wielding a gavel instead of a rubber stamp. Suddenly judges don’t really know anything! Or as Johnson put it:
“A lot of times it was infants and babies being returned to the home. It got frustrating …The people making the decisions are not the ones going into these homes putting their lives in danger. They’re not the ones sitting outside of these homes waiting for police officers.”
And then there’s this, a constant theme among Judge Gray’s critics:
Child advocates say the drastic reduction in foster care would make more sense if it came with greater resources to support struggling families — for mental health care, substance abuse treatment, case management or housing assistance — but that’s not the case. …
Paulette Carter, president of the Children’s Bureau of New Orleans, said it takes at least a month for the organization to line up services. And the answer isn’t just a couple of parenting classes. In the vast majority of cases, the issues that led to a child being removed from a home take months, if not years, to resolve.
This is a classic example of a provider pathologizing families because that bolsters the provider’s prestige and self-image. This was perfectly explained decades ago by Malcolm Bush in his book, Families in Distress:
The recognition that the troubled family inhabits a context that is relevant to its problems suggests the possibility that the solution involves some humble tasks … This possibility is at odds with professional status. Professional status is not necessary for humble tasks … Changing the psyche was a grand task, and while the elaboration of theories past their practical benefit would not help families in trouble, it would allow social workers to hold up their heads in the professional meeting or the academic seminar.
What makes Judge Gray such a threat to the child welfare establishment is the fact that she understands this. Again, from the story:
In cases of abuse, she said she does not hesitate to remove children, but that is not the norm. More than 85 percent of foster children in Louisiana are removed from their homes due to neglect, which is defined as a parent’s failure to provide food, shelter, clothing, supervision or medical care, to the point where the child’s safety is at risk. In many cases, Gray thinks, DCFS investigators mistake poverty for neglect.
“No food in the house? Send them to the food bank rather than taking [their children] into care,” she said.
Once again, Judge Gray has the evidence on her side, including the numerous studies documenting the transformative power of cash.
But even in those cases when more than a little cash really is needed, the very fact that there is a readily available dumping ground for children – foster care – means there will never be any pressure to actually provide those additional services. Those who say: “Wait for the ‘services’ before we curb needless foster care” are really saying: “Wait forever and never curb needless foster care.”
[Judge Gray] won’t speculate on whether her approach could serve as a model nationally.
Then allow me: YES!!!!
One key factor, she offered with a laugh, is having officials who are not afraid of negative publicity or losing elections.
She’s right again. One reason New York City now has a model system of high-quality family defense is because, nearly 20 years ago, judges actually admitted rubber-stamping removals even when they didn’t think the city’s child protective services agency had made a good enough case – because they were afraid of landing on the front page of a newspaper if they sent a child home and something went wrong.
In New York City, these judges are appointed by the mayor. And at roughly the same time, when two judges tried to do what Judge Gray is doing, the mayor at the time refused to reappoint them.
What was that mayor’s name again?
Oh, yeah. Rudy Giuliani.