The clueless CASA program of Florida

A new report paints a picture of Florida's CASA program that is as detailed 
as it is damning. So there's a danger of not seeing the forest for the trees.

● A legislative audit confirms they have no evidence the program is doing any good; the data range from unreliable to nonexistent. 

 ● The audit reviewed the scholarship on CASA and found what anyone who looks objectively at the literature is likely to find.

● Lawyers surveyed found what you almost always find with CASA programs: a profound bias against families that harms the children such programs are intended to help.

● It all echoes a study of the same program done nearly two years ago which produced similarly dismal findings.

 In the closing days of 2020, the Florida Legislature’s equivalent of the federal Government Accountability Office issued a report on Florida’s CASA program. (In Florida, it’s called a Guardian ad Litem (GAL) program, but it is, in fact, a CASA program.) 

 CASA is the program in which overwhelmingly white middle-class amateurs – volunteers whose only real “qualification” is their race and their class – march into the homes of overwhelmingly poor, disproportionately nonwhite families to pass judgment upon those families. They recommend what hoops parents will have to jump through to have any hope that their children will get to live with them again.  They recommend if the parent/child bond should be legally severed forever.  Judges often are quick to rubber-stamp their advice.

 What could possibly go wrong? 

CASAs could play a useful role as mentors for foster children and in finding extended family members when children really can’t remain in their own homes.  But they should not be allowed to “investigate” families let alone tell courts whether or not to destroy them forever. 

The new report is particularly important because the Florida program has sunk lower even than most other CASA programs in trying to justify its existence through a fear and smear campaign not only against families but against better alternatives. 

The new report from the Florida Legislature’s Office of Program Policy Analysis and Government Accountability (OPPAGA) is so damning in so many ways that there’s a risk of losing the forest for the trees.  Prof. Robert Latham, associate director of the University of Miami School of Law Children and Youth Law Clinic, has a detailed analysis of both on his excellent Florida child welfare blog. 

The forest

 The best view of the forest comes from the report’s survey of judges and lawyers.  The judges were generally fine with the program.  The lawyers, not so much. 

According to the report: 

[D]ependency attorneys expressed several concerns with the program. Concerns included …  GALs [remember, in Florida CASAs are called GALs] often reiterating [Department of Children and Families] recommendations; and lack of volunteer expertise.  Some also stated the program seems biased against and often delays reunification.  Attorneys and one judge expressed concern that volunteers’ personal experiences and biases may lead them to confound the safety of the parents’ home with what they think is a better home environment with a foster parent, resulting in more frequent recommendations for termination of parental rights. 

Many of these attorneys also reported issues with  GAL efficiency, including …
irrelevant court filings by the  GAL  (such as requests for parent to undergo a psychological evaluation when there is no history of mental health issues)… 

Some attorneys would like more training on family reunification as the primary goal in dependency.  This could include increased awareness of the benefits of preserving the family,  consequences of terminating parental rights,   realities of foster care,   and difficulties faced by disadvantaged parents. Six of the attorneys also reported that volunteers need more training on what actions or options are legal within the dependency system. 

Notwithstanding its genteel, measured language, the OPPAGA report confirms once again what an increasing body of research has found - that, in the words of a comprehensive law review article, CASA is “an exercise of white supremacy.” 

The research shows that, 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. 

More “training” won’t fix it; the bias is baked in.  

As for representing children in court – CASAs don’t actually do that. A CASA’s mandate is to tell the court what the CASA thinks is “best” for the child. If the child disagrees, the child is effectively silenced. 

A far better approach is for the child to have a lawyer who advocates for what the child wants – not because that’s always best, but because the only way a judge can make a truly informed decision about what is best is if all parties have strong advocates making the case for their clients’ desired outcome. 

As for children who are too young to express a rational preference – or even too young to speak (a prime focus of the Florida program’s fearmongering) -- there’s actually a better option than CASAs for them, too, as is explained in this excellent article from Family Law Quarterly. 

This kind of representation has another advantage: It qualifies for 50 percent federal reimbursement for every eligible case (the formula is complicated, but on average somewhere between 40 and 50 percent of cases probably would be eligible). 

An earlier report 

The OPPAGA report is not the first to point out the failures of the Florida CASA program.  Prof. Latham got there first. About a year-and-a-half ago, I wrote about his large-scale analysis of Florida CASA program data. As I wrote at the time: 

The study found that, even after pouring $600 million in taxpayer funds into the program over 15 years, using the criteria the program itself uses to claim success, there actually is no evidence that the program does any good – and some limited evidence that it might be doing harm. … [Prof. Latham] is not a CASA-basher. On the contrary, he worked in the Florida GAL program, began his excellent blog with posts defending that program and, as recently as 2016, received the program’s Excellence in Advocacy award. 

But what started him wondering about the program’s effectiveness was the depths to which it has sunk to try to keep itself in business and prevent the establishment of a better way to represent children.  The “better way” part is my conclusion. Prof. Latham sees room for both. 

You can read all about that earlier study, and the ugly tactics the Florida CASA program uses to try to justify its existence in that 2019 post.  I particularly hope people will read about those tactics because, I suspect, they will be on display Monday when the director of the Florida CASA program, Alan Abramowitz, testifies before a legislative committee. 

Enter OPPAGA 

He’ll be testifying about the OPPAGA report.  At the start of this post, I discussed the most important part – what the lawyers who actually have to work with the CASA amateurs found.  But there is more. 

Let’s start with the good news: 

Even as the program added lots more paid staff, it’s “serving” fewer children.  While lawmakers might see this as a waste of money, actually it’s a sound investment.  In fact, if the pattern were to continue, and the legislature lavished so much money on the program that they didn’t “serve” any children, this would significantly improve the lives of many of those children. 

Now the bad news: 

The worst news is “the forest” – the confirmation of the profound bias against families.  But there’s also bad news about the trees: 

● The report spends a lot of time on the data the CASA program uses to justify its existence.  Prof. Latham discusses this in great detail so I’ll just boil it down: Florida CASA doesn’t have a clue about what Florida CASA does or does not accomplish. 

● What we do know, however, is that there is enormous variation within Florida concerning outcomes for children – a further indication of CASA bias.  While the data are so poor one can’t be certain, it appears that in one region, for example, 51 percent of cases with a CASA ended with reunification while in two other regions it was only 37 percent.  Nearly half of all cases in one region ended with children’s rights to their parents terminated and the children adopted; in another region it was 19 percent. 

In fact, the Florida CASA program seems to be so wrapped up in playing God that it even opposed legislation to create a foster children’s bill of rights – and they were very basic rights.  The program’s attitude seems to be: We decide if you have rights, we decide where you will live, we decide if you will ever live with your family again. Because only we know what’s “best.” 

The exception 

Of course, not every Florida CASA behaves that way. Consider one of the many heartbreaking cases documented by USA Today Network reporters involving children needlessly torn from parents whose only crime was to be, themselves, victims of domestic violence. In one such case, the CASA, Brooke Robertson, fought hard to keep the family of Marion Phillips together for as long as she could.  According to the story: 

The case still haunts Robertson, who grew up poor herself and said Marion’s five-year struggle highlights an uncomfortable truth for child welfare workers: Often, their job is weighing whether to take a child from a loving but flawed family and put them in the arms of wealthy strangers. 

“Yes, they would have sushi and hummus and trips to the museum, instead of Mountain Dew and wrestling matches,” Robertson said. But she couldn't help but wonder what would have happened if the state had given a fraction of the stipend they pay to foster parents – more than $400 per child per month – to Marion. 

Robertson imagined Marion with a fine apartment, a safe neighborhood, professional babysitters, after-school tutors, a car with room for the kids, a private attorney. 

“It will break your heart,” Robertson said. “It will break your brain.” 

But that kind of CASA doesn’t seem to be welcome in Florida. After she was off the case, she looked up the case in a child welfare database. 

For that, USA Today reports, she was forced to resign.

A CASA program’s new low

The program tries to save itself with fear and smear tactics. And the program director knows better.

 

Some CASA programs still call themselves "a child's voice in court."
But often the CASA model of representation actually silences the child
(Photo by Elvert Barnes)

Second of two parts. Read Part One here.

In the previous post to this blog, I described a new, large-scale analysis of data from what is probably the nation’s premier CASA program – the one in Florida (where it goes by the name Guardian ad Litem (GAL) program).

The study found that, even after pouring $600 million in taxpayer funds into the program over 15 years, using the criteria the program itself uses to claim success, there actually is no evidence that the program does any good – and some limited evidence that it might be doing harm.

The study was done by 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 GAL program, began his excellent blog with posts defending that program and, as recently as 2016, received the program’s Excellence in Advocacy award.

But what started him wondering about the program’s effectiveness was the depths to which it has sunk to try to keep itself in business and prevent the establishment of a better way to represent children.  The “better way” part is my conclusion. Prof. Latham sees room for both.

The two methods generally are called “best interests” representation and “client-directed” representation, sometimes called “expressed wishes” representation.

In the “client-directed” model, the lawyer does what any other lawyer would do: advocate for what his or her client wants.  In the so-called “best interests” model preferred by CASA, the lawyer advocates for whatever the CASA happens to think is in the child’s best interests.  If the CASA and the child disagree, the child is effectively silenced.  (And that makes it particularly galling that some CASA programs still claim to be “A child’s voice in court” – often they are anything but.)

And now we know that the Florida CASA program (again, they call it a GAL program) will use all sorts of fear and smear to keep it that way.  In one email, the program’s leadership declared that the goal of those who favor allowing children to have someone in court fighting for what they actually want

“… is not improving safety or representation of children, but rather to change the manner of representation so that all children – even newborns - - have expressed wishes representation, including attorney-client privilege, confidentiality, and the child directs the lawyer to the goals of the advocacy.”

Translation: How horrible! Some people want to give children actual legal rights! We can’t let children have a real voice in court!

But here’s the kicker. The email continues:

Under this scheme, 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.”

Oh, and that line about “even newborns” is just another sleazy scare tactic. The American Bar Association offers exhaustive guidance concerning how to deal with any situation where a child really can’t express a preference – and where an expressed preference can cause the child “substantial harm.”

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 email 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.

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 its abuse or neglect, the operative word is accused. Children can be trapped in foster care for months before a court ever decides if they actually were abused or neglected or not.  It speaks volumes about the Florida CASA program that their email effectively adopts the position that all families are guilty until proven innocent.

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

It should be obvious that 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.

These emails aren’t just damaging concerning the specific issue of legal representation for children. They contribute to the climate of fear that has led to foster-care panic in Florida. Indeed, these memos sound like they could have been by the Miami Herald, whose demagoguery about child welfare derailed reform that was making children safer and plunged the Florida child welfare system back into its usual state - chaos.

A hypothetical case …

Latham does a good job of explaining the differences in the two approaches in a hypothetical case in which the child is in foster care and wants to go home:

In the best interest model, the GAL investigates the situation and comes up with a position. If the GAL decides that reunification is not their preferred path, then the GAL attorney makes no further efforts and waits for the parent to fail. Alternatively, a GAL could actively thwart the family’s efforts at reunification by filing motions to limit visitation or to pile on extra services.

Notice how Latham understands that “extra services” can actually be a way to undermine families, by forcing them to jump through a bunch of additional, meaningless hoops – something to keep in mind when CASA programs claim they’re successful because families supposedly get “more services.”

Latham continues:

In the direct representation model, on the other hand, we start with the position of the child. If the child wants to pursue reunification, then the attorney must take steps to try to make reunification possible. The law requires the home to be safe, so the attorney aims to make it so. That could include seeking services for the parents, holding the Department [of Children and Families] accountable if it doesn’t make reasonable efforts, filing injunctions to get abusive people out of the home, and a lot of other efforts to try to meet the legal standard.

The client-directed attorney must also communicate with her child client and counsel her about the likelihood of success and other options. Maybe the child changes her mind about going home at some point; maybe the parent is never able to create a safe home. The client-directed attorney may never achieve the client’s goal and reunification may never happen.

The difference in the two models is that the directed attorney’s efforts are proportional to the child’s desire to go home, while the best interest advocate’s efforts are proportional to their own value system and beliefs (which none of the other parties or even the judge has any way of really exploring).

The attorney providing direct representation to a child cannot lie to a judge, withhold information on known harms in a way that is tantamount to fraud on the court, or pick up children and throw them into burning houses. If a child’s attorney does any of that, please report them to the Bar.

…and a real case

 

But one doesn’t need a hypothetical to see the harm in the CASA-knows-best approach.  The Washington State Supreme Court recently upheld a state law that says judges have discretion to give children their own lawyers, or not, as they see fit.  In her dissent, Justice Mary Yu cited a real case. As I explained in a previous post to this blog:

The child, known as E.H., is now about ten years old, more than old enough to make his preferences clear. His mother is in jail, but will be released next year. Justice Yu writes:

E.H.'s position was (and remains) directly at odds with the position of his CASA and the State: E.H. wants to reunite with his mother, while the CASA and the State argue that termination of parental rights is in his best interests. When the court denied appointed counsel … E.H. was erroneously deprived of his right to be heard.

Although E.H. cannot reunite with his mother right now, she is scheduled to be released in July 2019, when E.H. will still have almost half of his childhood ahead of him. In the meantime, he is in a stable placement with foster parents who are willing to serve as long-term guardians for him. He has maintained a close relationship with his mother, and she has made every possible effort to remain an important part of his life. …

E.H. thus has a clearly stated position favoring reunification, and there is no apparent reason why that outcome is not a reasonable possibility in accordance with the law of this state. [Emphasis added.]

Justice Yu goes on to dismantle the first line of defense used by CASA to justify refusing to fight for what the child wants, which boils down to  “Well, we do mention to the judge what the child wants”:

The trial court noted that the CASA, though "somewhat leery," reported E.H.'s stated position to the court in accordance with her statutory duty. … However, the position of the State and the CASA, that termination is in E.H.'s best interests, directly conflicts with E.H.'s stated desire to reunite with his family.

The CASA is required to represent and advocate for termination in order to comply with her statutory duties, but termination and reunification are mutually exclusive outcomes. … No one could possibly advocate for both at the same time. The CASA's assessment of E.H.'s best interests therefore make it impossible for her to represent his position.

It gets weirder.  Justice Yu points out that the CASA actually had a lawyer to argue for the CASA’s position – that E.H’s rights to his own mother should be terminated -- yet E.H. had no lawyer to argue for what he actually wants - reunification.  The same thing happens in Florida – and the Florida GAL program wants to keep it that way.

The snide, smug assumption implicit in the Florida GAL program memos, that kids don’t know what they’re talking about when they want to reunify and so should be ignored, is contradicted by the facts of this case – and every other case in which a child welfare agency was wrong to remove a child and wrong to keep the child in foster care.

The First Star factor

Even all this wasn’t quite enough to prompt Latham to do his study.  It was the fact that the Florida GAL program also engaged in rampant statistics abuse.

There is a group called the “First Star Institute” which periodically puts out reports grading the states on how well they provide legal representation to children.  Their criteria include whether children get lawyers and, if so, if those lawyers are required to fight for what the child wants.

I’ve never thought these reports were terribly useful for one reason: They grade states on what their laws require – but in child welfare that often is very different from the facts on the ground.  After all, for nearly 40 years federal law has required states to make “reasonable efforts” to keep families together – and we all know how that’s worked out.

But the Florida GAL program has attacked the First Star report in a way so intellectually dishonest that it prompted Latham to act.

Here’s what the program did: They pulled out a few standard outcome measures and said Look! Here are some states that have client-directed representation and they’re even worse than Florida!  As Latham put it: “Cherry picking some states that suck worse than Florida and happen to be in a report you don’t like is not a validated statistical method.”

But, hey, if that’s the way you want to do it, Florida GAL program, I’ll go for it.  Or, to quote one of my favorite lines from Inherit the Wind, “We’ll play in your ballpark, Colonel.”

The Florida GAL program cites some measures by which New York State is worse than Florida (and  I'll come back to that.) But on one of the most important measures of all, the rate at which children are torn from their parents, Florida is nearly twice as bad as New York.  And for reasons I hope are obvious, anyone who claimed Florida children are twice as safe from abuse as New York children would be laughed out of the room.  By your own logic, Florida GAL program, that must be your fault!

The proportion of children trapped in foster care on any given day is more than 20 percent higher in Florida than in New York.  By your own logic, Florida GAL program, that must be your fault!

In California, only about ten percent of children have a CASA. In Florida it’s much higher. And Florida takes away children at a rate 63 percent higher than California. By your own logic, Florida GAL program, that must be your fault!  (There actually is evidence  that more CASA = more needless foster care.  But this isn’t it.)

Even where other states do look worse, there is less to it than meets the eye.  Yes, it’s true, the average length of stay in foster care is longer in New York than in Florida.  Of course it is.  New York State, and especially New York City, are far more careful about taking children only when its genuinely necessary – although New York still makes plenty of mistakes in that regard.  So in New York, it’s far more likely that the foster children really need to be in care and the children and families have more severe problems.  So of course they’re going to be in care longer.

The various local governments that run child welfare in New York easily could make their average length-of-stay numbers look better: They could just rush out and take, say, 50 percent more children, then return them in 30 days or less.  The average length of stay would plummet. (And, sure enough, in still another fascinating post, Latham notes that Florida already holds thousands of children in foster care for 30 days or less.)

It was the misuse of the First Star report that pushed Latham to act.  Because, as he put it, the latest fear-mongering email from Florida GAL

went and dragged math into it. … The email suggests that, based on the outcomes, the GAL Program is provably, mathematically superior to kids having attorneys represent them directly. That felt like a challenge. If it’s provably true, then let’s try to prove it.

So he did. In fact, he did a much more sophisticated version of what the Florida GAL program itself did: He compared outcomes in regions where the rate of GAL representation is high to the rate where GAL representation is low.  The results are discussed in detail in the previous post to this blog and in much more detail Latham’s own post.

But it boils down to this: When Latham played in the Florida GAL program’s ballpark, he struck out the side.

In search of an evidence-based alternative

But amid all the fighting over “best interests” vs. “client-diected” representation for children let’s not forget that there is another alternative that really is evidence-based.  A comprehensive, large-scale peer-reviewed study using one of the finest methodologies in research -  propensity score matching – found that there is a great way to reduce foster care without compromising child safety: Provide high-quality interdisciplinary representation to parents.

The evidence is in: Florida would get far better results for children if it took the nearly $55 million a year it spends on its GAL (CASA) program and spent it instead of this model of family defense.  And Congress should follow suit.  The same Congress that makes it almost impossible to fund prevention programs under the Family First Act because of absurdly-high standards for declaring a program “evidence based” is glad to lavish funds on CASA – for which there is no evidence of any good, and some evidence of harm. I would argue, a lot of evidence of harm. Congress should divert all CASA funds into evidenced-based prevention and family preservation programs.

People who know better

Robert Latham takes no joy in any of this.  Indeed his post is called “A Reluctant Post About the Guardian ad Litem Program: Its Ethics, Efficacy, & Future.”  As he explains:

I worked at the Guardian ad Litem Program and I love the people there. I got started blogging in child welfare through defending the Program against unfair criticism and I still defend them when the criticism is unfair. I will do it again in this post, when appropriate. … Yet, it’s getting harder to ignore the messaging coming out of its Tallahassee office. The accusation that representing kids means blindly throwing babies into unsafe situations is nothing new. I am still sad, though, because I know the people who wrote this letter know better.

I know how he feels. I know one of the people responsible for the letter too.

The Florida GAL program is run by Alan Abramowitz.  During Florida’s all-too-brief era of child welfare reform, under Bob Butterworth and then George Sheldon, Abramowitz ran the child welfare division of the Florida Department of Children and Families.  He talked the talk about family preservation better than any child welfare administrator I know.  And the data suggest it wasn’t just talk.  But it’s stories such as this, from more than a decade ago, which show what a class act Abramowitz can be when he wants to be.

So to see Abramowitz distributing fear-and-smear memos – well, sad doesn’t quite cover it.  Because Prof. Latham is right.  Alan knows better.