When injustice hides in plain sight

The New York Advisory Committee to the U.S. Commission on Civil Rights is examining racism in the New York family policing system (a more accurate term than “child welfare” system).  New York’s institutional providers of family defense prepared in-depth written testimony that is a report in itself.

As I read it, I had to stop every few pages.  Just reading the first-hand accounts of soul-crushing injustice visited upon overwhelmingly poor nonwhite families was tough.  Yet these families have to live it every day.

I’ve excerpted part of one section below – the section on what, in New York, is called the family court.  That’s not because the injustices chronicled in that section are worse than the rest – but they are easier for the rest of us to see for ourselves.

Anyone in New York – especially any journalist -- who doesn’t believe what these lawyers are telling us can head for the family court in their borough or county and watch.  For more than 25 years in New York State, by order of that state’s highest court, the Court of Appeals, these hearings have been open.  

Unfortunately, New York reporters almost never take advantage of this opportunity.  In fact, in 2011 a New York Times reporter started showing up just to see what would happen and was repeatedly turned away.  Judges and court officials either never knew, or forgot, that the hearings were supposed to be open.  The Court of Appeals had to send them a reminder. 

So now might be a good time to put the judges to the test again – and this time, stick around to see the injustice that’s been hiding in plain sight. 

And not just in New York.  In large part because of the work of New York’s family defenders, at least in New York City the system is one of the least horrible in America.  Wherever you are, it’s probably even worse.  And if where you are happens to be Texas, Florida, Michigan, Missouri, Washington State, Oregon, Colorado and, for media only, Illinois, you can go see just how awful things are.  Admittedly, in some of these courts it may take time before an observer can see the difference in how Black and white families are treated – because it may take awhile before you see a white family in these courts. 

Meanwhile, here’s some of what New York City’s family defenders see every day.  And here’s something else to think about as you read it:  

One of New York’s, indeed the nation’s, most important, and bravest, anti-racist voices in the field, Angela Burton, was fired from her job with the New York State court system after she submitted an outline of remarks she planned to make to a meeting of the New York Advisory Committee.  Her bosses felt her remarks would “undermine public confidence in the court’s impartiality.” 

EXCERPTS FROM THE WRITTEN TESTIMONY OF NEW YORK CITY FAMILY DEFENDERS [Emphasis added.] 

The structure and practices of family court and the laws family court judges apply harm families and act as a force of destruction to Black communities. Too often family courts rubber-stamp the decisions of the family policing agencies, and fail to function as the intended check on the system. … 

From its failure to follow governing laws and ensure due process, to its prioritization of expediency over fairness, humanity, and just outcomes, the family court functions as an arm of state power, rather than a neutral arbiter of fairness and justice. … On a regular basis our clients face the following harms and disregard for their humanity and dignity in family court:  

1. Being called by generic labels like “mom,” “birth mom,” “dad,” and “paramour,” instead of by their actual names, and the use of other dehumanizing language;

 2. Having cases scheduled and called with no regard whatsoever of the parent’s schedule, obligations, or the arduous demands of court ordered services; 

3. Experiencing the other players in the system insensitively laughing, joking, rolling their eyes, and making light of the proceedings in total disregard for the profound impact the proceeding is having on them and their family; and 

4. Being subjected to the reliance on tropes and narratives deeply rooted in this country’s history of anti-Black racism, classism, and other forms of structural oppression. 

From the moment of a parent’s first contact with the family court, the system dehumanizes parents and families and deprives them of the opportunity to be fully heard. While family investigations go on for days, weeks, or even months prior to the filing of allegations in family court, parents are typically unable to meet their defense counsel until the day the petition is filed (sometimes even on the second or third appearance) and often only moments before a family is called before the court for the first time, … 

There is no legal obligation for [the Administration for Children’s Services] ACS or prosecutors in family policing cases to provide exculpatory or exonerating evidence. This results in presentations to the court that are extremely one-sided, resembling a diatribe making a case against a parent without the balance that could give the court an accurate picture of the family. 

The unnecessary and inexplicable, and in our view intentional, delay in providing information is so normalized in the courts, that we are greeted with astonishment when we propose that we receive the information earlier. 

Time and time again, we have seen cases with similar facts have vastly differing results, with the only measurable distinction between the families being the color of the parent’s skin. For example, when allegations of neglect relate to a one time incident of excessive corporal punishment, white and Asian children are more likely to remain at home with their families, while Black families are consistently separated, with the court relying on racist tropes that the parent is “angry” and unable to control their actions. The data also supports our observations in court, showing that although the percentage of reports leading to [court] filings for Black parents and Latine parents are similar, the reports made against Black parents are 50% more likely to result in removal than those made against Latine families. 

From their first appearance in court, Black families are not looked at holistically, and are met with suspicion and contempt. For example, expressions of emotion by a Black parent whose children are being torn away are often viewed by both the court and caseworkers as evidence of a larger mental health or anger issue, consistent with racist perceptions and tropes about Black people—rather than recognizing an emotional response to family separation as fundamentally human. 

A parent who is deferential to the agency and the court – who is “polite,” easy to work with, and who expresses “insight” in terms that they admit full wrongdoing – is more likely to have a swift and favorable resolution. In contrast, a parent who expresses emotions about the separation of their families, who questions unreasonable directives from the agency and court, and who raises concerns about the care their child receives in the foster system, will often be viewed as “angry,” “difficult,” “non-compliant,” and “lacking insight,” which will delay reunification and progress in family court. 

Prosecuting attorneys attend court conferences intended to discuss settlement and visitation completely unprepared, without settlement offers or positions on expanding visits or other plans for achieving reunification. Cases with extremely weak allegations often unnecessarily take months or years to resolve, and then only after attorneys for parents force the agency’s hand by filing motions to compel discovery or to dismiss. The ACS attorney will then often withdraw their petitions or offer a very short adjournment in contemplation of dismissal, ultimately subjecting families to months or years of unnecessary surveillance and family policing involvement. 

Prosecuting attorneys regularly fail to provide discovery until the eve or day of trial, making it difficult, if not impossible, for defense counsel to advise parents about the potential risks and consequences of settlement, or to be prepared to move forward with trial. Parents regularly take off work to appear in court for a fact-finding hearing, only to find out that the ACS attorney failed to subpoena a witness or essential records, or is simply unprepared to move forward. Adjournments are liberally granted by the court in these circumstances, despite the ACS attorney’s lack of diligence. The resulting delays subject families to needless separation, unnecessary surveillance and stress, and demonstrate an utter disrespect for families. 

While these delays are intolerable and grounded in a racist disregard for the time and well-being of Black and Latine families, the family court’s efforts to address them also often display the same racist disregard. For example, while adjournments are repeatedly granted to ACS, a parent’s request for an adjournment, no matter the basis, is routinely denied. A parent’s absence will lead to an immediate default, which carries with it negative legal consequences, while the court will grant multiple adjournments when the ACS worker is repeatedly absent, even when their participation is essential. 

[O]ften, Black parents are treated across the board with greater skepticism and distrust. Courts question the intentions of Black parents, their love and commitment to their children, as well as their willingness and ability to follow court orders while white parents are generally given the benefit of the doubt and trusted to overwhelmingly have good intentions and stronger protective capacity.   

Brilliant reporting on child welfare in The New Yorker – made possible by open courts

It’s another example of why “sunshine is good for children.”

The late Judge Judith Kaye opened New York's
family courts to the press and the public

On the heels of the outstanding story in The New York Times about foster care as the new “Jane Crow” comes another brilliant deep dive into child welfare in New York City – this time from The New Yorker. (Once again, as you read it, please keep in mind that in most places, the child welfare system is worse, often far worse, than in New York City.)

Almost as striking as the story itself is why reporter Larissa MacFahrquhar wrote it. Here’s how she explained it in the New Yorker’s daily email newsletter:

How do you decide whether to take children from their parents? For the most part, we read about child-protective services only when they fail spectacularly—when a child is killed at home. The press then excoriates the usual suspects—the caseworker (How could she miss signs that now seem so obvious?), child protection (How could they train their workers so poorly?), and the city (Does it care so little about children that it won’t pay for enough caseworkers to protect them?). 

Because of this, most of the pressure on child protection is in one direction—in favor of removal. But it’s no small thing to take a child from his family. It seems strange to me that removal has come to seem the safe and cautious thing to do, and, since the press has played a large part in promoting this idea, I thought it might be useful to have a journalistic account of both sides of the story.

I sat in on the Bronx Family Court for several months and watched judges grapple with this awful decision. One mother had been coming to family court for eight years, since her young daughter had burned herself on a curling iron. For much of that time, her children had been in foster care. The foster-care agency believed that the foster parents should adopt the children. Child protection was nervous about their safety if they returned home but also knew that children often fared badly in foster care. The mother’s lawyer said that the mother loved the children and that her mistakes didn’t justify keeping them apart.

Everyone was arguing for the best interests of the children. The mother sat, mostly silent, as the lawyers made their cases

Several things stand out about this story, but it may be most notable for how well it answers one question.  Research has told us over and over again that in typical cases children placed in foster care fare worse even than comparably-maltreated children left in their own homes.

As the reader is placed in the position of the mother in this case, forced to watch helplessly as the children deteriorate in foster care, we understand why this happens.

Something else that stands out about this story: In most states, it would have been impossible to do it. That’s because it relies so heavily on the reporter’s ability to see the process for herself, by spending months in what, in New York, is known as Family Court.

In most states these hearings are closed. That’s not to protect children, it’s to protect almost everyone except the children – CPS agencies that do terrible things to families and lawyers and judges who either can’t or won’t do their jobs.

In 2001, another superb journalist, former Pittsburgh Post-Gazette reporter Barbara White Stack examined this issue in what is still the definitive series on the topic, Open Justice. She found that none of the excuses for closing hearings held up to scrutiny and all over the country onetime opponents became supporters. (We summarize some of the key findings of that series, and update some of the data in NCCPR’s Due Process Agenda.)

So along with MacFahrquhar, the courageous mother at the center of the story and some great lawyers from the Bronx Defenders, someone else deserves credit for this particular piece of outstanding journalism: the late Judge Judith Kaye.

She’s the one who ordered these courts opened in New York, when she was chief judge of the state’s highest court, the Court of Appeals.  As she said at the time: “Sunshine is good for children.”

Remembering Judith Kaye, the New York judge who put the “family” in Family Court

Judge Judith Kaye

Judith Kaye, the first woman named to New York State’s highest court, the Court of Appeals, and the first to serve as its Chief Judge, died today at age 77.

Though The New York Times notes many of her accomplishments, the paper neglects some of the most important.  They concerned the state’s Family Courts.  Here are some of them:

Protecting domestic violence victims, and their children

It had been common practice in New York – and remains common practice elsewhere – for child protective services agencies to take away children from battered mothers, just because the mothers “allowed” the child to “witness domestic violence.”

A federal class-action lawsuit brought an end to the practice in New York. (NCCPR’s Vice President, Carolyn Kubitschek, was co-counsel for the plaintiffs.)  During the course of that suit expert after expert testified that while witnessing domestic violence sometimes can, indeed, be emotionally harmful to a child, taking that child from the victim of the violence is much, much worse.  One expert said that, for the child, it is “tantamount to pouring salt into an open wound.”

The section of U.S. District Judge Jack Weinstein’s decision summarizing this testimony remains one of the most popular pages on NCCPR’s website.

After Weinstein ruled, the City appealed.  At one point the federal appellate court sought clarification of New York law from the state Court of Appeals.  That led to a sweeping, unanimous decision, written by Judge Kaye, making clear that New York State law does not allow this barbaric practice.  In effect, that extended the impact of the lawsuit statewide (though, as always, it’s not clear if child protective services agencies actually are following the law).

Giving children real lawyers

Although juvenile court hearings are supposed to be all about the children, often the children are effectively silenced.  That’s because instead of a lawyer tasked with advocating for what the child wants, children often get “law guardians” who are free to substitute their own judgment for that of the child.   And that’s often the easiest course of action, particularly when it simply involves rubber-stamping the recommendation of a child protective services agency.   So if a child desperately wants to return to her or his parents from foster care, but the law guardian disagrees, the child is effectively silenced.  (While less common, a child who desperately wants to remain in foster care also may be silenced, and that is equally wrong.)

Of course, the fact that a child wants a particular outcome doesn’t mean he or she should get it. And some children are too young to express a rational preference, or any preference at all. But deciding what’s best is what judges are for.  And they can’t truly do justice unless everyone has an advocate making the best possible case for his or her side.

The New York State Bar Association promulgated guidelines calling for children’s lawyers to follow the direction of their clients – the children - except where the child was too young.    But the guidelines were not binding.  Judge Kaye made them binding.

Opening family courts to press and public

One of the reasons juvenile courts can get away with trampling on the rights of families, and attorneys can provide representation that’s inadequate – or worse – is that, in much of the country, the hearings are secret.  Slowly that’s been changing, and today, nearly half of America’s foster children live in states where these hearings are open to the public and/or the press. 

In New York, that was done by order of Judge Kaye.  I believe the news stories exposing what went on those courts after the hearings first were opened are part of the reason New York City became a national leader in providing high quality defense counsel for families caught up in the child welfare system through organizations like The Bronx Defenders, Brooklyn Family Defense Practice and the Center for Family Representation.

And no one ever boiled down the rationale for opening these courts better.  Said Judge Kaye: “Sunshine is good for children.”

Her own family has many reasons to be proud of the legacy of Judge Judith Kaye.  And a lot of children and parents who may never have heard of her have reason to be grateful.

Foster care in Michigan: Did the state’s child welfare chief mislead the public on purpose ...

…or was she just appallingly ignorant herself?

That’s the question raised by the latest outstanding investigative report from WXYZ-TV in Detroit.  In a series of reports dating back to last August, the station exposed the fact that probation officers were – literally – rubber stamping court orders to tear children from their families; orders that are supposed to be approved only by a real live judge.  The issue first came to light as a result of Maryanne Godboldo’s fight to rescue her daughter from needless institutionalization by the Michigan Department of Human Services.

Not surprisingly, that happens to be illegal.  But the practice was stopped only after WXYZ exposed it.

But the Wayne County Juvenile Court refuses to release any information about how many children were removed illegally or what has happened to them.  Neither will the Michigan Department of Human Services – unless the television station pays more than $32,000.  In effect, DHS is holding what should be public information for ransom.

If anyone should be scrupulous about adhering to the law it is the Director of Michigan DHS, Maura Corrigan.  After all, she is a former justice of the Michigan Supreme Court.

But, as WXYZ reported:

Following one of our first stories a year ago about child removals, DHS Director Maura Corrigan refused to speak to us on camera.  The day after our investigation aired, Corrigan wrote an opinion piece in the Detroit Free Press.  The headline: “Removing children from families always follows legal procedures.”

Now that that’s been proven to be false – we asked a DHS spokesman if they have been trying to determine how many children may have been wrongly taken from homes with invalid court orders. [Emphasis added.]

This raises an obvious question: Did Corrigan know full well that the process of removing children from their homes in Detroit was rife with illegality when she claimed otherwise – or was she appallingly ignorant herself?

If it’s the latter, it appears Corrigan has been doing nothing to educate herself.  Because in answer to WXYZ’s question, the agency said it is not lifting a finger to find out how many other children were affected by illegal rubber-stamp removals.

And if you’re wondering what the group that so arrogantly calls itself “Children’s Rights” – the group that has a consent decree with Michigan DHS – is doing about all this, the answer is: absolutely nothing.  More than nine months after the illegal rubber-stamp removals were revaled, CR hasn’t said a word about them.

But at least one member of Congress isn’t settling for silence and stonewalling.  In a follow up story, WXYZ reports that Representative Hansen Clarke (D – Detroit) is asking the U.S. Department of Justice to investigate Corrigan’s agency.

Open courts in child welfare: LA Judge takes a big step in the right direction

UPDATE, JAN 31: STILL ANOTHER INDICATION THAT OPEN COURTS WORK: Though only a minority of states have open court hearings in child welfare cases, they include some of the largest - New York, Texas, Illinois and Florida among them.  Once court hearings are opened in Los Angeles, nearly half of America's foster children will live in a jurisdiction with open hearings. Yet in all the years that these hearings have been open, no state has closed them again, and none of the fears of opponents has come to pass.


            Court hearings concerning cases alleging child abuse and neglect in Los Angeles County would be presumed open to the press, but remain closed to most of the public under a draft order issued Friday by the Presiding Judge of the county’s Juvenile Court.  Judge Michael Nash will hold a hearing on the draft order Monday. 

            If Judge Nash proceeds with this order as written, it will be a significant step forward in holding the county Department of Children and Family Services and the courts themselves accountable for what the system does to children and families in Los Angeles. [UPDATE: JAN. 31: At the conclusion of the hearing, Judge Nash announced that he will issue a final order after making some minor changes to the draft.]  As we explain in our Due Process Agenda, none of the many other state and local systems that have opened these courts has closed them again because all the fears of opponents proved groundless.  The need for opening these hearings is superbly explained in a letter from Berkeley attorney Edward Opton, reprinted in the previous post to this Blog.

            The order also has some unfortunate limitations.  But in reading the reasoning Judge Nash offers in his draft order, it appears he considers this as far as he can go under existing law, based on rulings from California appellate courts.

            Under the proposed order:

Members of the press shall be allowed access to Juvenile Dependency Court hearings unless there is a reasonable likelihood that such access will be harmful to the child’s or children’s best interests.

Any party can raise an objection to a reporter’s presence, at which point the judge would have to rule on the issue of “reasonable likelihood” of harm.  The order offers no guidelines, no definition of harm, and no standard of proof that someone objecting to the presence of reporters must meet.  That gives lousy judges plenty of leeway to keep their courts closed whenever they don’t want reporters to see how those courts do their jobs. 

The provisions for the general public are a little more confusing, and a lot more restrictive.  According to the draft:

Members of the public shall be admitted to Juvenile Dependency Court hearings at the request of or with the consent of a child about whom a petition has been filed. Other members of the public may enter the courtroom and be present at a hearing if the court finds that such persons have a direct or legitimate interest in the case or the work of the court.  Upon request of the court, such persons shall specifically articulate the purpose of their presence.

            As I read it, this means that if the child (which often will really mean the child’s lawyer) wants someone in the courtroom, that person is allowed in no- questions-asked.  Anyone else has to prove a “legitimate interest.” [UPDATE, FEB 1: Judge Nash's final order clarifies that this is, indeed, what he meant.]

            But it’s possible that Judge Nash is saying that, for a member of the public to be admitted, that person would have to both have an invitation from the child’s lawyer and meet the legitimate interest test.  That’s unlikely, but if it is what Judge Nash is saying then it would set a terrible precedent.  It would give one party to the case a power denied to all the others, instead of leaving such decisions up to the judge.  This is exactly the kind of condition the sponsor of legislation to open California courts statewide wisely rejected.

            The other problem, of course, is that the order opens up the question of  what, exactly constitutes “the press”?

The appellate court decisions on which Judge Nash relies predate the Internet.  No doubt a reporter for the Los Angeles Times, even Garrett Therolf, would be considered a member of the press.   But the best coverage of child welfare in Los Angeles has come from WitnessLA, a Blog written and edited by Celeste Fremon, a former reporter for LA Weekly.  Is she a member of the press?  Given the strong reporting often seen at WitnessLA, I doubt that Fremon really would have a problem. But it illustrates how drawing the kind of distinction Judge Nash has in mind has become more difficult.

            The good news is that for decades Illinois and New Mexico have operated this way.  In those states juvenile courts are presumed open to the press and closed to the public.   Those states don’t seem to have encountered any difficulties.

GUEST BLOG: Foster care in America: The case for open courts

The Presiding Judge of Los Angeles County Juvenile Court, Michael Nash, is planning to open court hearings in child abuse and neglect cases to the press and the public.  He has solicited comment on a draft order opening these hearings.

A particularly compelling response came from attorney Edward Opton, who has practiced law in Oakland, California, since 1981.  He works with a national organization that advocates for the rights of low income children and youth. As Opton points out, toward the end of the letter, the description of the process offered by those who want the hearings closed actually is one of the strongest arguments for making them open.

With Opton’s permission, his letter to Judge Nash is reprinted here:


LETTER FROM EDWARD OPTON TO JUDGE MICHAEL NASH

Dear Judge Nash:

This letter responds to the several comments you have received in objection to the current proposed blanket order concerning WIC 346.

The objectors to a juvenile court that would be presumptively open, but closed upon proper showing of good cause, without exception ignore the reasons that, in democracies, courts normally are open to the public.  The objectors point to a panoply of potential harms, almost all hypothetical, that might occur if dependency courts were open; but as to the benefits of open courts they say not a word. 

I suggest that the objectors are failing to take notice of a thousand years, or more, of history, in which the openness of the judicial system has developed hand in hand with government of the people, by the people and for the people, while closed courts, secret courts, Star Chambers have been the tools of dictatorship, oligarchy and arbitrary rule.  It goes without saying—but needs to be said more often—that the co-development and co-incidence of openness in government, including open judicial systems, on the one hand, and democracy on the other, is no accident.  Justice flourishes in the open; injustice in the dark.  This is a basic principle.  It is supported by theory and, even more important, by mankind's collective experience.  That experience is called history.

It follows that pleas for exceptions, for courts that operate in secret, cannot be persuasive unless they show that the particular proceedings they would keep secret differ in some exceptionally important respect from the great variety of proceedings, practically the whole of our judicial system, that are conducted in the open. 

The objectors to the Court's proposed blanket order do not and cannot make the case that the potential costs of open dependency hearings, such as embarrassment and stress, are different from or greater than  the identical “downsides” of openness in many other judicial settings. 

Consider, for example, marital dissolutions, applications for domestic violence restraining orders, mental competency hearings, and criminal proceedings of all types.   In all such proceedings, the alleged misbehavior of adults is contested.  Often the alleged misbehavior is reprehensible, and no matter whether the evidence of human failure concerns a bank president or a bank robber, it has the potential to embarrass not only the adult plaintiffs, defendants and witnesses, but also their families, including their children. 

In other words, the objectors' arguments that children might be harmed would apply with equal or greater force—or lack of force—to a large proportion, perhaps half or more, of all judicial hearings.  The objectors offer no rationale for making dependency hearings an exception to the general rule of open courts.  That general rule no doubt has costs for families, children included, but the benefits of open courts overbalance those costs.  No evidence has been offered that the balance of costs and benefits in dependency court is uniquely different, so different that the normal principles of our judicial system should not apply.

                                                                        * * *

The history of secret judicial proceedings teaches us that secret proceedings are unfair, unjust proceedings.  I know of no exceptions.  One side, the institutional side, has the advantage.  The other side, the individual, is the subject of the proceeding but seldom an effective participant, for she finds the procedure is stacked against her.  The forms of justice may be observed, but the reality is otherwise.

Consider, for example, typical dependency proceedings in Los Angeles Courts as described by a knowledgeable group of objectors to the proposed blanket order.  The objectors, who are children’s attorneys and/or executives who employ children's attorneys, describe the dependency court as a scene of manifest injustice:

“The typical work day of children's attorneys in court is very full.  Attorneys are constantly required to multi-task and juggle between many responsibilities.  Once the attorneys enter the courtroom in the morning, they are reading the 5-10 court reports they have just received minutes before and then they meet with and interview extended family members, caregivers and clients in the shelter area of the courthouse.  These conversations can take anywhere from 10-45 minutes or more depending on the child's current state of mind, the nature of the hearing, the complexity of the family situation and the number of children in the family.  The child's attorney must also negotiate settlements with parents' counsel and county counsel.  Throughout the day they are continuing to read late reports that are handed to them and speak to parties who continue to arrive.  When their child clients are present their attention must be focused on the child talking with them, explaining what is happening and watching for nonverbal clues regarding their clients well-being and any current distress or anxiety.”  (Letter from executives of Children's Law Center to Hon. M. Nash, November 28, 2011, p. 9.)

One might rephrase the objector's description of a routine day in court in transactional/operative terms as follows:

Children's attorneys come to court with two or more strikes against them and their clients.  They are handed written reports that caseworkers have compiled.  They now see for the first time the written evidence that will be used that day to consign their clients to be separated from their family, or to be reunited with the family.  Their clients may or may not have been consulted in the preparation of those reports, and if their clients were consulted, what they said may or may not be fairly represented in the reports.  The child's attorney was not present when the caseworker interviewed the child, and so, if there is a mismatch between what the child reportedly said to the caseworker and what the child is saying now to the attorney, the attorney is not in a good position to determine which version, if either,   is more reliable.  The children's attorneys must attempt on the spot to patch together oral evidence from family members and caregivers who they, the attorneys, may never have met before—and all this must be attempted not in a law office, with desks, quiet, privacy and staff, but in “the shelter care area of the courthouse.”  In this chaotic scene, the children's attorneys often cannot provide effective legal counsel.  Cases usually are resolved according to the recommendations of the Department of Children and Family Services, and the presence of the children's attorneys often is little more often a matter of form.  The formalities must be observed even if the reality of effective legal representation has become a distant memory, a law student's aspiration that has drained away in the assembly line routine of dependency court reality.

Does the above extrapolation from the objectors' November 28 letter fairly represent the reality of dependency court?  Is it totally off base, partially correct, or uncomfortably close to the truth?  The writer of this letter does not know, and that is the problem.  The secrecy of dependency court makes independent assessment impossible. 

What the writer of this letter does know is that allegations of unfairness, of “stacked decks” in dependency courts, are widespread, and they are of a remarkable consistency, though they enter cyberspace, via blogs and on-line comments to newspaper stories, from people who mostly are strangers to one another.  Such complaints are also consistent with principles of organizational sociology (or from another perspective, commonsense organizational politics): when isolated individuals and an institutional bureaucracy resolve conflicts in a setting where the bureaucracy is a repeat “player” and the individuals are not, the rules of engagement almost always develop to serve the interests of the repeat player, the bureaucracy—and especially so when the proceedings are secret. 

UPDATE: Foster care in Michigan: Wayne County bars rubber-stamp removals

This post was updated at 7:20pm to reflect additional information about the new policy.


The Michigan Department of Human Services no longer will be allowed to simply get a clerk of probation officer to rubber-stamp orders to tear children from their families. WXYZ-TV in Detroit has a story about the decision.

After the practice was exposed by attorneys for Maryanne Godboldo and some excellent reporting by WXYZ, Wayne County officials issued an unsigned memo changing the policy.

Effective immediately, orders must be signed, personally, by either a judge or a “referee,” a lawyer appointed by a judge to hear cases and make recommendations.  At least that appears to be the minimum required according to the somewhat-unclear written policy.  Though it's not in the written memo WXYZ reports that the policy requires that even when a referee "reviews" the order, a judge personally will have to sign it.

The change in policy is an important first step.  It sends a vital message to DHS that tearing a child from everyone she or he knows and loves is not a trivial act to be rubber-stamped.  And it means that, at a minimum, a real live human being with actual training in the law has to review the allegations before allowing such drastic action.

There still is a long way to go.

● First, it would be useful to have a clear, written statement that a judge and only a judge can sign these orders.  Though that's what the policy reportedly means, it can be read as allowing a referee to sign the orders.


A referee is not a judge.  Responsibility for inflicting the trauma of removal on a child should be taken, personally, by a judge.  Indeed, DHS director (and former Michigan Supreme Court Justice) Maura Corrigan herself has claimed that, by law, "only judges" can do this.   She made that claim even when probation officers were, in fact, rubber-stamping the orders in Wayne County.  Presumably, she didn't know.  But even after the rubber-stamping was revealed, Corrigan never spoke out against it.  Nor did she instruct her caseworkers to refuse to accept an order that was rubber-stamped.

● Second, while it is not entirely clear, the new policy still may allow verbal orders over the phone after hours.  In an age of e-mail there is no reason to tolerate a verbal order.  Orders to tear apart a family can and should be in writing at any hour.  There needs to be a complete written record of what was alleged.  The Godboldo case illustrates why - it is the errors throughout the written order and the failure to cite any valid reason to tear apart the family on the spot that document the slovenly nature of DHS practice in that case.  And having the order in writing helped Judge Ronald Giles reach his wise decision to throw out the criminal case against Godboldo.

● More generally, while this should mean the end of the use of a literal rubber-stamp, judges and referees all over the country are far too willing to do whatever child welfare agencies  want them to do.  As is discussed in the previous post to this Blog, juvenile court judges need to bring to bear the same wisdom and same respect for the Constitution shown by Judge Giles, who presides in Wayne County District Court.

● And  Michigan law itself makes it too easy to take away children without a full-scale court hearing first, or even going to a judge or referee at all – the standard is significantly lower than in other states.  That law needs to be changed.

But this change is still an important start. 

Maryanne Godboldo never chose this fight – and her daughter never chose it either.  But having been forced into it, they now have won an important victory for all of the vulnerable children of metropolitan Detroit. 

Foster care in Detroit: What a difference a judge makes

Do Wayne County Juvenile Court judges have a conflict of interest whenever the issue is rubber-stamp removals?

The judge was appalled.

Watch, in this story from WXYZ-TV, as Judge Ronald Giles holds in his hand the “order” used to remove Maryanne Godboldo’s daughter, by force, from her home and institutionalize her for seven weeks.  Listen as Judge Giles declares:

It is ridiculous to remove somebody’s child based on this order.  It does not even express any situation where we have contingent circumstances that says the child is at risk.

And then, in this clip from another WXYZ story:

We’re talking about a person’s constitutional rights here and to have that put up against this order, which is grossly inadequate, incorrect, the mistakes on it are numerous as identified by the protective services worker who typed it up.

Judge Giles is talking about a “court order” that never was issued by an actual court.  It was never so much as seen by a real live judge.  Instead, a probation officer literally rubber-stamped the order.  It’s a routine practice in metropolitan Detroit.  And, as WXYZ explains in this excellent in-depth report, experts on the law say it’s illegal.

Judge Giles went further.

When Detroit police tried, illegally to serve the illegal order, Maryanne Godboldo barricaded herself and her daughter in the house.  Police allege she fired a shot at them, something Godboldo’s lawyers deny.  But it resulted in a slew of criminal charges against Godboldo.

Giles threw all of those charges out, saying there was no evidence for the claims about the shot.  (The prosecution isn’t giving up. With Wayne County and the Michigan Department of Human Services, apparently desperate to retaliate against a mother who stood up to them to protect her child, the county is appealing Judge Giles’ ruling.)

Earlier this month, another judge, Lynne Pierce, upheld the same rubber-stamp court order that Judge Giles essentially said was a piece of crap.  Judge Pierce would not even allow Godboldo’s lawyers to challenge the validity of the order – so the jury in that courtroom never heard about its questionable legality.

In contrast, the jurors heard all about the standoff and the allegation that a shot was fired at police -  the very claim for which Judge Giles found no evidence.

What accounts for the difference?

Quite possibly the type of court.  Judge Pierce presides in Juvenile Court, where the issue was whether Godboldo “neglected” her daughter by exercising her legal right to remove the child from potent psychiatric medication that was causing serious side effects.  In juvenile court, judges are used to the slovenly approach of Wayne County DHS, in which clerks or probation officers routinely rubber-stamp judges’ names onto inaccurate orders to remove children for no good reason.  In fact, the name on the rubber-stamp is that of presiding judge of the juvenile court, Leslie Kim-Smith – in effect, Pierce’s boss.

That, of course, raises a couple of intriguing questions.  Had Judge Pierce ruled that rubber-stamp removals are illegal, would she have been saying in effect: “My boss has been, at the very least, condoning illegal activity over and over again for however long this has been going on”?  If so, is it, in fact, a conflict of interest for any Wayne County Juvenile Court judge to rule in a case where rubber-stamp removals are an issue?

More generally, Judge Pierce’s ruling is in keeping with the ethos of juvenile court since its inception 115 years ago, an ethos that boils down to: “We’re not out to punish anyone, we’re only here to help, so we don’t need all that fuss and bother about due process and protecting people’s rights.” 

In the juvenile justice field, the U.S. Supreme Court saw this for the farce it was nearly half a century ago.  Making clear that it understood that juvenile courts do, indeed, punish, sometimes severely, the high court declared in In re Gault that “Under our Constitution, the condition of being a boy does not justify a kangaroo court.”

But in child welfare, juvenile courts still tend to operate under what can best be described as a “pre-Gault mentality.” Too many judges behave like frustrated social workers.  (Be especially wary when they start talking about “therapeutic justice.”  You can bet they’ll be heavy on so-called “therapy” and light on justice.) 

In Michigan, this contempt for the law has reached the point where a survey found that 40 percent of juvenile court judges admit that they lie and certify that DHS has met its burden under federal law to make “reasonable efforts” to keep families together, even when the judges don’t believe it themselves.

So it’s no wonder Godboldo lost in Pierce’s courtroom.

A JUDGE WHO STILL GETS OUTRAGED BY INJUSTICE

In contrast, Judge Giles presides in district court, which handles a variety of civil and criminal cases, but not juvenile cases.  So he’s in the kind of court where, in theory at least, everyone is supposed to get a real lawyer, and old-fashioned concepts like evidence, due process and the presumption of innocence prevail.

My guess is that Judge Giles doesn’t see many of those rubber-stamp court orders to take away children.  So he looked at this one with fresh eyes – and was shocked at what he saw.


And speaking of fresh eyes, here’s what the Michigan State Court Administrative Office told WXYZ about the practice of substituting a rubber-stamp for a real, live judge:  “A judge should never delegate the decision to remove a child to a staff member."  The SCAO is an arm of the Michigan Supreme Court.  So the administrator reports to the court and, in particular, the Chief Justice.

For several years the Chief Justice of the Michigan Supreme Court was Maura Corrigan.  Of course, now Corrigan has a different job – running the Michigan Department of Human Services.  So Corrigan is allowing workers for her new agency, DHS, to do exactly what her old agency, the State Court Administrative Office, says is utterly improper.

And, of course, just weeks before the rubber-stamp removals were revealed, Corrigan herself wrote in the Detroit Free Press that “only judges can issue orders removing children from their homes; such orders are issued only in the most extreme circumstances.”

The most generous interpretation of this is that Justice Corrigan was misinformed on both counts.

THE REAL WINNER

Although Judge Giles’ wise decision has been described as a victory for Maryanne Godboldo, it’s really a victory first and foremost for her daughter, who was needlessly torn from everyone she knew and loved and institutionalized for more than a month.  That kind of trauma can scar a child for a lifetime.  It is state-sanctioned child abuse.  Continuing to pursue the case, in either court, can only further harm the child.

Sadly, judge Giles ruling ends only the criminal part of the case.  DHS still has legal custody of Maryanne Godboldo’s daughter, who remains, for now, in the physical custody of an aunt.  Later this month, there will be another hearing in juvenile court.  It’s anybody’s guess what will happen once the case returns to kangaroo country.

The Tennessee foster care suit: It’s 10pm. Do you know who your plaintiffs are?

Andrew, Kenneth, Nancy, Donna, and Kiera have several things in common.

All of them are very young. Andrew is 23 months old, Kenneth is two years old, Nancy is 4, Donna is 5 and Kiera is 6.

All of them were torn from their families "on or about November 6, 2009" based solely on the word of a caseworker who told a judge they were in danger. None of their parents had a chance to defend themselves or fight for their children first. In all cases, the allegation against the parents is "neglect."

All of them are from Anderson County, Tennessee, a county with a total child population of only about 16,000.

And, though, of course, they don't know it, all of them are suing the State of Tennessee.

Andrew, Kenneth, Nancy, Donna, and Kiera are the "supplemental named plaintiffs" in the lawsuit brought by the group that so arrogantly calls itself "Children's Rights" as it attempts to block a state law that ever-so-slightly counterbalances the enormous incentives to needlessly tear apart families. (The law is discussed in detail in previous posts to this Blog.)

There is nothing unusual about having children as "named plaintiffs." Depending on what you want to change it can be difficult to sue a child welfare system without them (though in the many other such suits I've read, at least some of the young people were old enough to understand what was going on.) And in this particular case, the first time CR tried to sue over this law, using the children it already had as plaintiffs in a longstanding settlement against the Tennessee system, the judge effectively said they couldn't use the same plaintiffs this time; they'd have to find new ones.

Of course the children didn't make the decision to sue the State of Tennessee themselves. That was done by someone deemed capable of representing their "best interests" – known as their "next friend." For four of the five children in this suit their "next friend" is their guardian ad litem, a lawyer named to argue for whatever the lawyer thinks is in their "best interests," for the fifth, the decision was made by the child's CASA (which figures).

But how could they possibly know that joining this particular suit was in the children's best interests? And how could CR?

Normally, the stories of named plaintiffs are carefully researched. Then, at least, the lawyers can be confident in their own minds that the relief they seek will help these particular children. And, of course, the stories of the named plaintiffs usually are a key part of persuading the judge. Lawyers look for the most horrible examples of whatever injustice it is they are suing about. So if the issue is, say, abuse in foster care, the named plaintiffs will have endured prolonged, horrifying abuse, outlined in detail when the lawyers file their complaint. In Oklahoma, for example, CR just released a 163-page report on the horrors that befell the named plaintiffs in their class-action suit in that state.

But in the Tennessee case, according to CRs Complaint, the only thing we know is that these children were taken from their homes based on the word of a caseworker, and that decision was promptly rubber-stamped by a judge whose record indicates a fanaticism about child removal. (Remember, Anderson County is the one where children are taken from their parents at a rate four to five times the state average, which would make it a contender for Child Removal Capital of America.) And there certainly wasn't much time for investigating the cases or getting to know the children. Having been taken away "on or about November 6, 2009" they were already named plaintiffs by November 9, when the Complaint was filed.

So now, with no indication that CR's lawyers have ever met their new "clients" and with no indication if they even know whether these children ever should have been removed at all, CR is using these children to increase the odds that their time in foster care will be prolonged.

CR would argue that they're just trying to free the judge from any extraneous considerations, like money. But CR is remarkably inconsistent about that. Children taken from their homes routinely are placed with private agencies that are paid for every day they hold those children in foster care. Yet I know of no instance in which CR ever has sued to stop those kinds of financial incentives. So the real effect if CR wins, using these children as their named plaintiffs, would be to make sure that any and all "external" incentives, personal, political and financial, push judges in only one direction – taking away the children and stashing them in foster care for a long, long time.

It's possible, of course, that foster care might be the best thing that's ever happened to Andrew, Kenneth, Nancy, Donna, and Kiera. Maybe they really were in imminent danger and there was no other alternative but to remove them without so much as giving their parents a hearing; maybe their removal and continued placement in foster care will save their lives. But the odds are very much against that. Research tells us that If, indeed, foster care is prolonged, chances are only one of these five children will do well as a young adult. The odds are at least one, probably two of them will be abused in foster care itself. The odds that they will get in trouble with the law and be unable to hold a job and the odds that Nancy, Donna, and Kiera will become pregnant as teenagers are greater than had they been left in their own homes.

So at a minimum, didn't the lawyers at CR have an obligation to find out all about Andrew, Kenneth, Nancy, Donna, and Kiera before using them to seek a change in state law that would increase the odds that they will stay in foster care? Didn't they have an obligation to find out if that change would be best for these specific children before suing in their names?

If, in fact, CR wins its lawsuit and if these children wind up better off in foster care, they should know that CR's lawyers helped keep them there so they can thank them. But if CR wins and foster care turns out to be a disaster, as it so often does, then Andrew, Kenneth, Nancy, Donna, and Kiera should know that among those who share responsibility are some lawyers from New York City who probably never knew them and probably knew little about them when they turned them into "named plaintiffs."

CR’s new push for more foster care in Tennessee

The group that so arrogantly calls itself "Children's Rights" is back in federal court in Tennessee. Once again, CR is trying to ensure that nothing gives the judge in Anderson County, whose fanaticism about child removal may be unexceeded anywhere in America, even a moment's pause about tearing apart family after family.

    As is discussed previously on this Blog, CR is challenging a law that says if counties tear apart families at more than triple the state average they are free to keep right on doing so – but they have to pick up the tab for the foster care. The only county actually affected is Anderson, which removes children at a rate either four times or five times the state average, depending on which source you believe. Either way, that might make Anderson County a candidate, along with a few others, for Child Removal Capital of America.

    In theory, CR is simply arguing that judges must continue to make their decisions in their current pristine, pure state, uncontaminated by even a passing thought about money or anything else besides "the merits." If anyone needs still another reason to open these hearings to press and public, the fact that CR is trying to pass of this Disney version as reality is a very good one.

    If that really were how juvenile courts operate, there would be no foster-care panics, no surges in removals after a high-profile case made headlines. Judges would simply admonish caseworkers not to be influenced by the fear of landing on the front page, refuse to rubber-stamp all those additional removals and that would be that. If decisions were made purely "on the merits," there would be no enormous variation in rates of removal, not just among counties but among states, to the point where children in one state are torn apart at rates five times higher than another. And were decisions made only "on the merits," it would not be possible to track the rise and fall of the foster care population throughout the 20^th Century, as Prof. Leroy Pelton does in his seminal book For Reasons of Poverty, (Praeger, 1989) to one factor above all others: changes in federal financial incentives.

    Incentive after incentive after incentive, personal, political – and financial – push child welfare agencies to take-the-child-and-run. These same incentives push courts to rubber-stamp those decisions and, sometimes, even demand removal when a child welfare agency wants, say, in-home supervision.

The way to counter these incentives is not to pretend they don't exist, but to push back, with incentives to curb removals, so the incentives cancel each other out and decisions really can be made on the merits. (Of course that also would require that impoverished birth families have high-quality legal counsel, so they can balance the presentations by child welfare agencies, but one never hears about that from CR.)

    Tennessee's new law provides what can best be called one tiny counter-incentive. And that is the one and only incentive CR chooses to fight – in Tennessee or anywhere else.

    All over America, private agencies are paid for every day they hold a child in foster care. If they do what they are supposed to do – return the child safely home or, when that truly is not possible, get the child adopted, the money stops. The pernicious impact of these incentives was documented at least as far back as 1975, in a brilliant series by the New York Daily News.

    But I know of no case in which CR has gone to court to try to change these incentives. On the contrary, when New York City first tried to change them, in 1995, CR went to court and successfully stopped the change. (Now, the City is making some tentative steps toward changing those incentives again.) In perhaps the ultimate irony, CR just today released a study reportedly whining about how children languish in foster care too long in New York City. Perhaps had CR targeted the financial incentives to hold them there, back when the Daily News first exposed them, things might be different now. (CR didn't exist as a separate entity back then, but its founder, Marcia Lowry, was doing much the same work, affiliated at the time with the New York Civil Liberties Union.)

    So clearly CR isn't against all financial incentives – those that prolong foster care are just fine.

WHERE THE "SMOKING GUNS" REALLY ARE POINTED

    CR's "supplemental complaint" to the court is filled with quotes from various state officials and state documents which CR seems to consider damning. In fact, they show precisely why the Tennessee law is needed.

CR quotes the Commissioner of the Tennessee Department of Children's Services, Voila Miller, on a provision of the original bill that would have let the state bill counties if they took children at more than double the state average, instead of triple, as in the final law. Had that passed, and if counties did not change their ways, Miller estimated it might have reimbursed the state a total of $7.5 million. Said Miller:

The way we track commitment rates in Tennessee and most states is the number of children per thousand that come into the custody of the state. In Tennessee we have an average and most states, I mean, most counties rock right around that average of somewhere between three and four kids per thousand, we have a few counties in this state that commit at 16, 20 per thousand. That is significant overcommitment of children. Children are coming into state custody who should not. Now, we have been addressing this problem aggressively and we've made a lot of progress, and as I said, I want to work with those counties in making sure those kids can stay safely in their home. I don't ever want to collect a nickel of that 7.5 million dollars, I want to reduce that commitment level. [Emphasis added.]

    A Tennessee legislator explained that the provision was simply common sense. We're all more careful about spending our own money than someone else's:

[T]he policy consideration for this particular matter is to somewhat have our local governments be a little more judicious as to who they commit to state custody . . . . It makes people more responsible for their decisions, and when you're more responsible for your decisions you're going to be more careful with your decisions.

    Then CR quotes a memo from The Tennessee County Services Association, which it describes as "a nonpartisan, nonprofit public interest group." The memo said, in part:

The state average is 3.6 per 1,000 for children committed in the Dependent & Neglect and Unruly category. Anderson County's commitment rate is 17 per 1,000, some four times more than the state average. … The public policy implication is that in some cases juvenile judges are over-using their commitment authority and, thus, not offering alternatives to the family nor the child. [Emphasis added].

    Exactly.

    Then CR quotes the child welfare agency's budget director, who says:

    Actually, this one reduction actually is the only one in our Department that actually is good for kids. Now, you as a county may say, well, no, this is affecting your county budget. Our goal with this is that we as a Department don't collect a dime from the county. And that would be what was in the best interest of kids. . . . It's about . . . leaving [kids] with their families. (Emphasis added. But the ellipses this time and in the quote below are from CR – one can only wonder what CR chose to leave out.)

    And finally, what CR seems to think is the ultimate "smoking gun": An e-mail from the child welfare agency's legislative director in which he says:

    Anderson county [sic] clearly understands that they have a huge problem on their hands – their judge … We have the support of the county commission to work with the judge to bring down unneeded commitments.

    As for the law itself, in its final version it requires the child welfare agency to initiate a "collaborative planning process" with counties when entries are double the state average. Counties must pay only when they exceed triple that average.

    So what CR seems to view as a veritable arsenal of "smoking guns" points only in the direction of an agency that finally decided to use financial incentives in a way that can bring significant benefits to children – by saving them from the enormous harm of needless foster care.

    As to how CR got back into court on this issue – that, too, is instructive. And I'll try to get to it in a future post.