NCCPR at the Kempe Center conference: The case against CASA

 This is the text of the first of two NCCPR presentations at the 2021 Kempe Center International Virtual Conference: A Call to Action to Change Child Welfare

Most Court-Appointed Special Advocates programs call themselves CASA programs – as you’d expect.  Two programs cited in this presentation either in the past or now use a different term: Volunteer Guardian-at-Litem or VGAL.  They mean the same thing, and to avoid confusion I will refer to these programs as CASA programs throughout.  Where a quote uses the term VGAL I will substitute the term CASA.

Whatever you call it, the program I am going to discuss today is probably the most sacred cow in American child welfare; the subject of thousands of local news stories across America, gushing over how wonderful this program is.  I’m going to talk about why those stories are wrong, and how this most sacred cow in child welfare, Court-Appointed Special Advocates or CASA - harms to children.

That’s not because they want to hurt children, of course.  It was all created with the best of intentions.  CASAs still, overwhelmingly, are, to use Malcolm X’s famous phrase “kindly intentioned.” 

But it has failed.

To understand what CASA is and how it really works, I’d like you to imagine the following scene.

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A juvenile court judge thinks he needs more information to make decisions about families that are, literally, life-changing – up to and including whether the family will be allowed to exist.  He can’t get anyone to pay for hiring enough professionals to tell him what he thinks he needs to know at court hearings.

So he thinks: I’ve got a great idea!  I’ll just send someone out to pick a bunch of well-intentioned amateurs to do it for free!  We’ll give ‘em 30 hours of training – ok, maybe 40.  Then we’ll let them into the homes of families let them, interview everyone, assess those families, spend an average of 12 minutes every working day investigating the case - and then they can effectively decide if the child will go into foster care. They can effectively decide if the child stays in foster care.  They can effectively decide if the child will ever see his or her parents ever again.

What could possibly go wrong?

Stripped of the glossy p.r. and the gooey feature stories and the misleading claims about its effectiveness, what I have described is CASA.

● The program relies on volunteers.  Who has time to volunteer?  Not an impoverished mother already holding down two jobs to make ends meet.  It has to be someone with time on their hands.  That means they have money on their hands.  No wonder some CASA chapters are started by Junior Leagues. 

● The National CASA Association requires 30 hours of training before sending this overwhelmingly white middle-class army of amateurs into homes that are overwhelmingly neither. Some local chapters may make it 40.  But even before COVID, much of it could be taken online.

If that’s all you need, we’re wasting an awful lot of money on law schools and social work schools.

● Although CASA sells itself as being better than everyone else because CASAs supposedly spend vast amounts of time with the children and families poring over information and investigating, a study commissioned by the National CASA Association itself found that the amateurs actually spend an average of only 4.3 hours per month – 12 minutes per working day -- on cases.  Oh wait, that’s the figure if the child is white.  If the child is Black it drops to 2.67 hours per month.

● I also used the word “decide” earlier.  Technically, of course, the CASA only makes recommendations.   But the National CASA Association brags that 80 percent of the time, judges accept most CASA recommendations, and 61 percent of the time they accept all of them.

So in fact:

● The CASA is the judge.

● The CASA is the jury.

And often:

● The CASA is the family executioner.

And often, their only real qualification is their white, middle-class status.  As Amy Mulzer and Tara Urs put it in their superb law review article analyzing the program, CASA’s very existence is “an act of white supremacy.”

         And as one of my board members, Prof. Dorothy Roberts noted in her keynote presentation at this conference, CASA is one of the programs that “expands the state’s monitoring and separation of families.”

How white is CASA? 

White volunteers are overrepresented in CASA much the way Black children are overrepresented in foster care.  Studies find that 80 to 90 percent of the volunteers are white. 

In fact, CASA is so white that when they finally get a Black volunteer, they really keep him busy.

Like this gentleman. 

His picture appears on a flyer for the CASA program in Snohomish County, Washington, a program I’m going to be talking about a lot.

But look! 

            The same volunteer also saves children for Northwest Rocky Mountain CASA, and Southwest Missouri CASA, and Newport News, Virginia CASA, and Chautauqua, New York, CASA. 

A couple of years ago he also was on the website for the Arkansas State CASA association. His picture appeared above the caption “Our spotlight shines on those volunteers who have gone above and beyond the necessary.” But click on the link to find the real volunteer they were profiling, and it was a white woman.

At the time this flyer was published one lawyer pointed out, there were more Black volunteers in the flyer than in the entire program.  Because the flyer had one, and the program had none.

And we can’t stop with race.  I know of no figures on the income of CASA volunteers but, again, it’s really hard to be both poor and a CASA.

In their analysis of CASA, Amy Mulzer and Tara Urs document how CASAs  “give voice to white supremacy.”  The program’s very existence, they argue, is a racist act. Indeed, they say, it is the only context in which the program’s existence makes sense.  As they point out:

● According to a CASA training manual, CASAs are said to bring their “community perspective, [and] common-sense approach.” But, the authors write, “CASAs are from an entirely different community than the children for whom they are supposed to speak and the parents whose voices they replace.”

● A prominent former judge calls CASAs “the gift of an important person in a child’s life.” But, Urs and Mulzer write, this assumes that until the white, middle-class savior steps in, the child “has no important people in her life already, no aunts or uncles, teachers, neighbors, friends, friends’ parents, pastors, grandparents, or others who have the child’s interests at heart.”

● The authors note that CASAs are not required to have expertise in law, social work, psychology or child development. As another lawyer puts it: “In Washington State it takes 300 hours of training to massage a horse …yet it takes less than 24 hours of training for a volunteer to walk in off the street and recommend that a child never see his or her parent again.”

And so, the authors explain, you get cases like this:

● A CASA recommends that a child be torn from her family forever because 

Formerly homeless, the father had bought an RV for the family to live in. The CASA deemed that  an unstable environment and repeatedly compared the RV to the foster home, which had “lots of toys.” 

Or a case in which the CASA supported termination of parental rights in part because the parents put too much Desitin on their child’s diaper rash. Or a case in which the CASA expressed concern that a Black mother was not sufficiently bonded to her daughter because she allowed the child to unbuckle herself from her car seat and get out of the car on her own, rather than doing these things for her.

But you would never know that from CASA promotional material.  On the contrary,
although a CASA’s job is supposedly to find out the facts, their own local websites suggest some of them go in with their minds made up.

A child can be in foster care for months before there’s an actual trial and an actual determination of whether the child was, in fact, abused or neglected.  But CASA websites regularly describe all the children they work with as abused and neglected. So does National CASA's Twitter feed (And yes, we can see that even though National CASA has blocked NCCPR on Twitter.)

Indeed, this Indiana program declares flatly that “These children have been removed from their homes because they have been victims of life-threatening abuse or neglect.”  That is almost never true.                                                           

The history of American child welfare is a history of the white middle and upper classes imposing their will on poor people who were hated and feared:

Native Americans warehoused in orphanages in order to “kill the Indian, save the man,”

Impoverished immigrants, victimized by Societies for the Prevention of Cruelty to Children, (known in poor neighborhoods simply as “the Cruelty”) and then families of color.

Through it all, Mulzer and Urs write, “white womanhood has been long associated with purity, refinement and correctness … in contrast to depictions of Black and Native women as ‘degraded, immoral, and sexually promiscuous others.’”

So today, the authors argue, a CASA is viewed as an “expert” precisely because “as a white, middle-class woman, she benefits from the assumption that such expertise is one of her natural attributes.”

“Common sense” equals white, middle-class sensibility. The fact that they are volunteers and have good intentions further insulates CASAs from scrutiny.

To see how this all plays out, I’ll discuss a few case examples.  Then I’ll look at what the research says, compared to the spin on the National CASA website.  I’ll talk about how one of the largest CASA programs tries to undermine giving children a real voice in court – because, contrary to some CASA program claims, a CASA often is anything but.  And I’ll suggest some very limited ways in which CASA actually could be useful.

First stop, Arkansas city Kansas, 2008.  In that community, the big annual fundraiser for CASA was a drag queen contest. The winner of the talent competition and the “Miss CASA” title was the local mayor.  He dressed up as a woman to whom he gave a surname described as "graphic slang for a female private part." So is the name the mayor chose for his backup dancers. Oh, and one more thing:

The mayor did his act in blackface.

            The local CASA director at the time said she was mortified when someone explained what the surname meant.  Other than that though, she thought the whole thing was great, telling a local news website she didn't think the mayor was trying to portray a different race: "It wasn't black black," she said. "It was all really just tan."  

She is no longer the director, and I’m sure this CASA chapter wouldn’t make the same mistake today. 

But keep in mind, that former director was in charge of an organization making life and death decisions about families in a state in which Black children are in foster care at a rate more than double their rate in the general population.

Now, let’s head over to Snohomish County, Washington. 

Meet former CASA volunteer Merlin Sprague.

According to his own blog he spent 20 years as a volunteer in the Snohomish County CASA program.  Here’s what the man who spent 20 years telling judges what they should do about families thinks of those families – in his own words:

All of us in programs like [CASA] see that:

The vast preponderance of children who are abused and neglected come from impoverished parents. 

The parents are unschooled and ignorant and are satisfied with the situation. This, of course, explains the poverty. 

Many parents are of low IQ.  Like one of my colleagues said, “They’re as dumb as dirt.”

Over 50% of the parents are felons and junkies who are incapable of looking after their own selves, let alone their children. Of the remaining 50%, most are simply felons and junkies who haven’t yet been caught. 

 But Sprague does have a solution:

Give each poor person, man or woman, whither [sic] or not they’ve been dragged into the child welfare system, $20,000, cash money, to be surgically sterilized.

         It’s a bargain, Sprague tells us, compared to the cost of raising the children who, under this plan,  won’t be born. And he adds, 

this $20,000 will not prevent the conception and birth of just one child, it will prevent the conception and birth of many as these kinds of people breed like flies. 

But, says Sprague, that’s not all:

As this cohort of parents are mostly drunks and junkies, $20,000 will buy all the booze and dope they could ever want.  Consequently, there will be many overindulgences which will result in death, further reducing the numbers of people on welfare. 

If this is what he’ll say publicly how could his colleagues and his bosses not know?

But the thing about the Snohomish program is, it wasn’t just one volunteer.  Indeed the web of lies and deceit in this program was so extensive it’s almost impossible to summarize.

It all came out into the open as a result of one termination of parental rights case, and a small firm of family defense lawyers who refused to be intimidated

Trial court decisions in that case, by Judge Anita Farris, excoriating the program run to more than 500 pages – and an appellate court agreed.  The appellate court praised Judge Farris’ integrity. 

So what happened?  The case involves a Black child taken at birth and placed with white foster parents.  

As the local newspaper explains:

For years, staff and volunteers lied, spied and withheld and destroyed evidence to keep the child from returning to her parents, or from regular visits. Court records detail retaliation against attorneys, breaches of confidentiality to benefit the foster parent and an illegal audio recording in open court. 

Among other things, a CASA infiltrated a listserv for family defense attorneys to learn about their strategy. (“Infiltrated” isn’t my word; it’s from Judge Farris).

But it didn’t stop there.  Judge Farris found that the CASA program conducted a campaign of threats and intimidation against the parents’ lawyers. 

 Judge Farris ruled that the program engaged in “the blatant withholding and destruction of evidence … rampant, continuing lying …” and “pervasive and egregious” misconduct.

“This was not just a lot of lying,” Judge Farris said in one decision:

It was lying with no concern that you were lying. It was lying with “I don’t care if I get caught.” It was lying again and again and again after getting caught. It was lying under circumstances where it could be absolutely proven you were lying.

 The judge found that the misconduct violated state and county rules for CASAs.  The program’s explanation:  The head of the program declared that no one in the program had ever heard of such rules. Said Judge Farris:

Are we to believe that [the program’s] staff attorney … who’s been there for decades, has never once mentioned the [CASA] rules to any [CASA] employee?  … It would be akin to an attorney general saying none of his deputies was aware of the criminal code… 

Judge Farris found that CASAs do get training in “how to keep things out of discovery,” the legal process by which each party obtains information from the other essential for preparing their case. These actions, she said, denied parents information they have an “absolute right” to receive.  Sometimes, she wrote, the files just disappeared:

The sheer number of unexplained missing pieces of evidence, all showing misconduct, is remarkable. … The inescapable conclusion is that [someone] in the CASA program scrubbed discovery to hide [CASA] misconduct. 

The appellate court also was struck by that, noting that CASA’s 

entire hard copy file for this dependency mysteriously “disappeared” from the [CASA] Program’s possession during the post-trial proceedings regarding the [CASA’s] misconduct. 

The very fact that this same program had Merlin Sprague as a volunteer should be reason enough to dismiss out of hand any idea that all these problems were confined to just one case.  But, should anyone still be wondering, Judge Farris noted similar complaints in other cases, though she did not rule on their validity.

            The Snohomish County courts responded to all this with cosmetic changes.  After the publicity, however, the program was taken away from the courts and is now administered by the county.  But that changes almost nothing. 

            But the most striking part of the supposed changes in the program is this.  Before the program was moved out of their jurisdiction, the Snohomish County Court system says that it

 “increased training [for CASAs] to, among other things, stress honesty, truthfulness and the correct way to handle documents.” 

What does it say about the nature of CASA that it can skew the moral compass of good people to the point that they need training to know they’re supposed to be honest and truthful?

I think a clue to how this can happen can be found in the latest CASA publicity campaign:

A slick video and photos declare I am for the child. (Hey, look who’s back!)

Notice the emphasis on that I.  What I think they’re really saying is, to paraphrase an old Chevy Chase line from Saturday Night Live, I am for the child – and you’re not.

Indeed, some news stories about CASA suggest that only the CASA cares only about the child.  Everyone else is said to have some other interest – certainly the parents don’t care about their own children because, after all, as we’ve seen, one CASA program tells the world: they’re rescuing the children from life-threatening abuse and neglect.

Is it any wonder there may be a temptation to bend or break the rules?

            Now one might say: But that’s just one program.  True. As far as I know, there’s only one CASA program that’s ever been embroiled in so much scandal.  Just as there is only one program that featured a blackface act in a fundraiser. 

            But that should have made it easier for the national association of which all these programs are a part to do something about it. Yet I have been unable to find a public statement about any of this on the National CASA website or anywhere else.

But still, CASA defenders can argue: You’ve only cited specific programs.  We can cite examples of ASAs doing good, we can cite young people who will tell you how great their CASA was, and we can cite examples of CASAs fighting to keep a family together.

All of that is true. But the question is: What is the norm? What is typical?

           When anecdotes collide, it’s time to look at the data.  And the data show that CASA is a failure.

            As demands for objective evaluation of programs grew, the National CASA Association acknowledged that its research base was lacking. But they just knew they were wonderful.  So they hired Caliber Associates to do a study  “measuring success in our work.”

            The study, released in 2004 was, by far the largest and most rigorous to that point. 

As the trade journal Youth Today noted, the 2004 study “delivers some surprisingly damning numbers.”

●The study found that CASA's only real accomplishments were to prolong the time children languished in foster care

           ● and reduce the chance that a child will be placed with relatives.

●The study found no evidence that having a CASA on the case does anything to improve child safety – so all that extra foster care is for nothing. (The study specifically controlled for CASA's all-purpose excuse for this – the claim that CASAs handle the most difficult cases.)

● As noted earlier, the study also found CASAs spend little time on cases involving white children, and less time on cases involving Black children.

Youth Today concluded that National CASAs attempt to spin the findings “can border on duplicity.”

But that’s one study.  What if someone did an even bigger even more rigorous study?  For some reason National CASA hasn’t done that. 

But Texas CASA has.  It was released at the end of 2019.  According to that study:

“Overall, children appointed a CASA have significantly lower odds than children without a CASA of achieving permanency.” 

Compared to children not burdened with a CASA on the case, foster children with CASAs were:

  ● Less likely to be reunified with their own parents.

             ● Less likely to find permanence in the form of guardianship by a relative.

             ● More likely to “age out” of foster care with no home at all.

Once again, the results are NOT due to the fact that CASAs are said to be assigned to “the toughest cases.” These researchers took even more extraordinary steps to account for that than their counterparts in 2004.

So even in terms of the holy grail of the family policing establishment, so-called permanency, CASA is a failure.

So, how did CASA spin this one?  The head of the Texas program told the Austin American Statesman:

“Our recommendation is always going to be what’s in the best interest of the child,” [Emphasis added.]

Wow!  I’d never before heard of the Doctrine of CASA Infallibility.  

            By the way, there also was a third much smaller study, published in 2014.  That study also bent over backwards to compare children with CASAs to cases of similar difficulty involving children who didn’t.  That study also showed that by standard outcome measures CASA didn’t help, and sometimes hurt.

            And what did the researcher conclude?  We must be using the wrong outcomes! 

[T]raditional measures of effectiveness are too narrowly defined and miss the subtlety of the CASA’s contribution to the child’s well-being. 

            That’s less surprising when you consider who conducted the study: The researcher had been associated with the CASA program she studied for 14 years, first as a volunteer then as a member of the staff. 

            And it wasn’t just any CASA program – it was the one in Snohomish County, Washington. She’s currently program coordinator for another CASA program.

            So to review: CASA buys and pays for a big study: The results are dismal.  A CASA program director does a small study: The results are dismal.  Texas CASA commissions the biggest study of all, from researchers sympathetic to the program: The results are dismal.

            Now, let’s see what National CASA says about the program’s effectiveness.

           Their website lists various documents purporting to show that children with CASAs have better outcomes.  Two documents are cited to show that children supposedly are more likely to achieve permanence.

But look closely. The first one dates back to 1999.  It involved a total of only 189 cases in one county, of which 68 had CASAs.

            The authors of that study concede the results concerning permanence were “not statistically significant.”

            But wait, look again: That other item sure sounds like a brand new study – it’s called “Child welfare system interventions on behalf of children and families: Highlighting the role of Court-Appointed Special Advocates” and it’s from 2018.

            But that isn’t a study at all.  Rather, it’s an article by a former director of the CASA program in Kansas City Missouri, and someone who at the time of publication still was working there, extolling the virtues of CASA.  And notice how the next line in the section I’ve heighted starts with “First victimized by their parents…” 

            The small section of this article concerning evaluation simply regurgitates decades-old studies including one called “Arizona Court Appointed Special Advocates Program, Internal Assessment, 1996.”           

One other thing about the article: It begins with a so-called composite case which the authors seem to think justified removal of the children on the spot and throwing them into a parking place shelter.  In fact, the case was a classic example of confusing poverty with neglect.              

Finally, let’s look at the most comprehensive attempt I know of to assess the studies.  As with all the other scholarship I’ve mentioned, this one was done by researchers who wanted to find that CASA meets the standard for being evidence-based.

            Their answer: No. 

            “There is not currently enough evidence to establish CASA as evidence-based practice.”  And they reached that conclusion in 2013 – before the most damning study of all, from Texas was published.

            But, some might argue, can’t we fix CASA?

            Again – this time it’s my conclusion: No.

CASA is unfixable.  That’s not because the volunteers are not “kindly intentioned.”  It’s because the volunteer nature of the program builds in racial and class bias.  And no, adding another “training module” won’t change that.

            There are two limited roles that CASAs can play.  They can serve as mentors to foster children. 

            And some CASA chapters have embraced family finding; an approach that moves heaven and earth to find extended families for children so if they really must be in foster care, at least it’s with extended family and not total strangers.

            But that still leaves the matter of how do judges get the information they need to make the best possible decisions?

            For a long time even CASA’s slogan was misleading: They called themselves “A
child’s voice in court.” 

At least one National CASA Association publication still says it.  (Oh, and notice also the horror story at the bottom: “When I was eight years old my mom decided she didn’t want to be a mother anymore.”)

            But a CASA is not a child’s voice in court.

 In fact, in many cases the CASA effectively silences the child’s voice in court.

           
The CASA’s job is to recommend not what the child thinks is best for the child, but only what the CASA thinks is best for the child.

            So, if, say a Black child desperately wants to return home, but his white, middle-class CASA thinks that child should stay in foster care, then tough luck kid: You are silenced.

            Oh no, say CASA defenders, that’s not true: CASAs still tell the judge what the child wants.

            Next time you hear that one I ask that you imagine that you are on trial for some heinous crime, facing decades in prison.  Your lawyer gets up and says: Well, your honor, I am obligated to tell you that my client says he’s innocent – but I think he’s guilty as sin and you should throw the book at him!  Would you consider that guy your voice in court? 

            Children need a real voice in court.  Instead of a CASA, every child needs a lawyer who will fight not for what the lawyer wants, but for what the child wants – it’s called “expressed wishes representation,” and in some states that’s already required for any child old enough to express a rational preference.  Under this model the determination of what is best for the child remains where it belongs: It’s what judges are for.

            Even for younger children, there’s actually an alternative to CASA-style best interests representation, but we don’t have time to get into that here.

            In Florida, there was legislation proposed to make that change to expressed wishes representation in some cases. The Florida CASA program has waged a furious and, so far, successful campaign of fear and smear against any such thing.

            That, in turn, infuriated Prof. Robert Latham, associate director of the University of Miami School of Law Children and Youth Law Clinic. He is not a CASA-basher. On the contrary, he worked in the Florida CASA program, began his excellent blog with posts defending that program and, as recently as 2016, received the program’s Excellence in Advocacy award.

            Prof. Latham believes there is room for both the CASA approach and expressed wishes representation. 

But he wrote another post when he no longer could abide the way Florida CASA

has worked to undermine giving children a real voice in court.  In one email, the program director wrote that with expressed wishes representation 

            children could be hurt because, as we know, most children want to return to their abuser.

As Latham aptly puts it:

“I thought we were past the days when … program leadership and their friends accused children’s attorneys of wanting kids to die.  And yet here we are.”  

Also, by the way, in those rare cases in which it really is dangerous to return a child home, the children often know it, they say so – and they, too, have every right to have someone in their corner fighting for them.

The email also falsely claimed that expressed wishes representation would even apply to newborns. 

Then came what Latham describes as “Another letter, another claim that attorneys for kids will stand by as children are murdered in the damn streets.”  That letter concludes:

For those children who are able to understand how to direct an attorney, most will make decisions to return to their traumatic situation, which is clearly not in their best interest. [Emphasis added] 

There are several specific problems with these emails:

● First, most children are not taken from “abusers” in the first place; they are taken from parents accused of neglect, which often is confused with poverty.

● Second: Whether it's abuse or neglect, the missing word is accused.  It speaks volumes about the Florida CASA program that their email effectively adopts the position that all families are guilty. As we’ve seen other CASA chapters do much the same.

● And third, as Latham points out: “Kids don’t decide to go home – judges have to order it.” [Emphasis in original.]

The reason children need expressed wishes representation is not because what they want always is what should happen.  It’s because the best way for a judge to actually decide what to do is when all sides have someone making the best possible case for what they want.

And a lawyer fighting for what a child wants has obligations beyond simply pushing to send the child home.  Her or his job is to fight to get the family whatever it needs to make the home safe.  In contrast, Latham points out, a CASA who herself doesn’t want the child to go home actually can fight against such help.

One final footnote: In Florida, and in some other states as well, the CASA doesn’t go into court alone – the CASA has a lawyer from the CASA program who is there to fight for what the CASA wants to have happen to the child.

            So consider what this means in a situation where the child and the CASA disagree: not only is the child deprived of a lawyer to advocate for what she or he wants, the child’s CASA actually has a lawyer to advocate against what the child wants.

            I will conclude not with my own words, but with the words of Amy Mulzer and Tara Urs in their law review article about CASA as an act of white supremacy.  They write:

The lessons of the CASA experiment offer one clear message: the integrity of the legal system is compromised when the law invites voices of privilege to dominate. Given our nation’s long struggle with racial discrimination, it is particularly troubling to allow the voices of white people to speak loudest in a system disproportionately focused on families of color. … 

            A legal system that allows middle-class white women to speak for the children of poor families of color is not hiding its bias if you only take a moment to look behind the “therapeutic” veneer. This exercise of white supremacy is out in the open, obvious, direct …

Allowing CASAs to stand in the place of child welfare-involved parents and speak for child-welfare-involved children is to take the structural racism underlying the child welfare system and give it a seat at the table.  

            We need to take away that seat at the table, and give it to children and families.

            Thank you.