Thursday, August 24, 2023

Another lousy McLawsuit won’t fix LA foster care – and might make it worse

The McLawsuits brought by the group that calls itself "children's rights"
always ignore the elephant in the room.

● These McLawsuits typically lead to consent decrees that drag on for years and sometimes worsen the conditions they were intended to correct. 

● That’s because they systematically ignore the elephant in the room; the problem at the root of all the others: the needless removal of children.  

● The latest McLawsuit reinforces ugly stereotypes about who loses children to foster care. 

● And when it comes to racism in the system, the McLawsuit reeks of tokenism. 

The group that calls itself Children’s Rights (CR) has filed another McLawsuit – one of those nearly identical suits it files all over the country that routinely ignore the need to stop taking so many children in the first place. 

This time the suit is against Los Angeles County’s family police/family regulation agency – terms the McLawsuit itself refuses even to use, except in a single footnote.  It concerns the horrendous treatment of foster youth aged 16 to 21. 

At the outset, there are some things I’m glad to stipulate, as the lawyers would say. 

● I have no doubt that everything in the McLawsuit about how horribly older foster youth are treated is true. 

● Litigation can be effective.  NCCPR board members brought two of the few lawsuits that have been relatively successful,  R.C. v. Hornsby in Alabama and Nicholson v. Scoppetta in New York.  Both those suits focused on curbing the needless removal of children – disproving CR’s repeated claim that this can’t be litigated. 

● CR and the other groups bringing this latest McLawsuit are not “in it for the legal fees.”  As is so often the case among those who get these issues wrong, they mean well. 

But in the rare cases when CR’s McLawsuits are followed by real improvement, it’s almost always in spite of the litigation, not because of it.  And over and over, the McLawsuits have left systems as bad – or worse – than they found them. 

That’s why Michigan’s foremost family defender, Vivek Sankaran, in effect told CR to please get the hell out of Michigan.  More details about CR’s ugly litigation track record are here.  

But the bottom line is simple: In family policing, wrongful removal drives everything else.  That's the elephant in the room.  But CR’s McLawsuits typically say little or nothing about curbing the needless removal of children or reunifying them after they are taken.  The remedies they seek often divert scarce resources from keeping families together. 

The L.A. suit risks doing just that. 

About that “array” 

The major solution called for in the lawsuit is “a minimally adequate array of safe and stable placements.”  The phrase appears at least 19 times in the McLawsuit complaint.  But Los Angeles County already has a “minimally adequate array of safe and stable placements.”   They’re just not using it correctly. 

Los Angeles tears apart families at the second highest rate among America’s largest cities.  If they stopped doing that, a whole array of empty foster homes would be available.  And if L.A. then provided Wraparound services those homes could handle “difficult” older youth. 

Yet there is not one word about the need to take fewer children.  And, in a county where foster homes are filled with children originally taken because their family poverty was confused with neglect, CR couldn’t be bothered to find even one named plaintiff taken under such circumstances. 

On the contrary, the McLawsuit reinforces ugly stereotypes about the kinds of families whose children are taken, by offering no counterpoint to examples such as the youth who 

was cycled by DCFS between various family member placements. During this period, she experienced abuse and neglect from her caregivers, including periods of homelessness. 

CR even implies that such cases are the norm: 

Rosie S.’s childhood had the hallmarks of trauma and instability that DCFS is accustomed to seeing in children entering foster care, including early childhood abuse and neglect, family violence, frequent moves, and unstable placements. [Emphasis added] 

The point is not that such examples should be left out.  The point is that the far more common circumstances under which children come into DCFS “care” should have been included.  Who says poverty is confused with neglect?  Among others, Children’s Rights itself – in its excellent public policy work, which often is at odds with its own litigation.  

As for reunification, the McLawsuit does mention that – but only in one specific context: foster youth
who are themselves parents and wind up needlessly separated from their own children because of various rules and policies in their placements.

CR rightly condemns this without addressing the question of all the young people in foster care whose own families are denied what they need to reunify. 

With curbing needless removal off the table (as usual in a CR McLawsuit), what’s left?  The McLawsuit doesn’t say, but typically that silence, combined with the false claim that LA doesn’t have “a minimally adequate array of safe and stable placements” means another foster parent recruiting campaign or maybe another pay raise for foster parents – who already often are taking in children because of those children’s own parents’ poverty.  And quite possibly more “group homes,” probably with some sort of euphemism in the name.  

CR’s policy arm produced an outstanding report condemning such “congregate care.”  Perhaps the litigation arm never read it – no wait, that can’t be it; CR’s litigation director is credited as a co-author. 

So when the inevitable settlement takes place it is quite possible that scarce funds that could be far better used to keep families together will be diverted into creating CR’s vision of “a minimally adequate array of safe and stable placements” – as happened in Michigan and Georgia. 

Tokenism about racism 

Children’s Rights is a group that once actually claimed, in a fundraising pitch, to be “driving a national conversation about the urgent need to end unjust government intervention in the lives of Black children and families.” 

That makes especially offensive how that whole issue is handled in this McLawsuit.  It isn’t.  It is simply mentioned in passing that “The overwhelming majority of foster youth in Los Angeles County come from low-income Black and Latino communities.”  And then, much later: “[T]he harms of Defendants’ failures disproportionately fall on already marginalized youth—youth of color, queer youth, pregnant and parenting youth, and youth with disabilities—as these youth are vastly over-represented in the Los Angeles County foster care population.” 

There is nothing about why this is the case, except for a hint, buried in a footnote. 

For clarity purposes, this brief uses the traditional terms “child welfare system” and “foster care system” to refer to the system of policies and supportive services meant to ensure the safety, wellbeing, and permanency of children, youth, and families. We recognize that the term “family

regulation system” more aptly describes this set of government structures, which far too often unjustly regulates marginalized families. 

But the Los Angeles McLawsuit doesn’t address how to stop “this set of government structures” from unjustly regulating marginalized families. 

The McLawsuits never do.