UPDATED SEPT. 15: Oregon foster care agency to Canadian family: In lieu of a pound of flesh, we’ll take your money

UPDATE: The Oregon AP has a very good story about the Kirkman case today.  The story appears on the websites of several newspapers, including the Oregonian - and that's probably the only place in the Oregonian where Lisa Kirkman will get a fair shake.  
Meanwhile KATU-TV in Portland and Canadian media are reporting that legal proceedings in Canada have been delayed - because Oregon DHS screwed-up the paperwork.  So now, in addition to looking vengeful and greedy, Oregon DHS looks pretty dumb.
    
I've written several times on this Blog about the case of Lisa Kirkman, a Canadian mother whose son was thrown into foster care while he was staying with his stepfather in Oregon. After two years, and multiple foster homes, the boy finally was returned home; largely, I believe, thanks to international media pressure.

    But clearly, the Oregon Department of Human Services doesn't like being made fools of in two countries. And they've found a great way to get even: Go to court in Canada, and try to make Lisa Kirkman pay Oregon for expenses the state incurred after it wrongfully took away her child. A hearing on Oregon's demand is scheduled to take place today.

    Though crossing an international border in search of these payments is unusual if not unprecedented, sadly, the practice itself is not. In another case, one of the most poignant I've ever read about, Oregon DHS is adding insult to the enormous injury it inflicted on a family by seeking the same sort of payment.

    In many cases, the payments can be the final obstacle standing between a foster child and return to his own parents.

    There is a word for taking away someone's child and making that person pay money to get the child back: Ransom. And it hurts everyone in the system, even the agencies themselves.

●The overwhelming majority of parents who lose children to the system have no money to spare. Often that's why their children are in foster care in the first place.

● Because the standard of proof in child welfare proceedings is so low, this provision inevitably punishes many innocent families.

●The purpose of foster care is to keep the child safe. Everyone concedes it is harmful to take a child from his or her parents and the longer the foster care the greater the harm. If you make ransom a condition of returning the child and the birth parents manage to do everything else but still owe the ransom, the foster care is prolonged even though the home is now safe. That is punishing the child for the alleged financial failings of the parents.

Prof. Daniel Hatcher of the University of Baltimore School of Law has an excellent article about the entire issue in the Brooklyn Law Review.

One can certainly imagine a child welfare system like Oregon's not giving a damn about the harm to the children. One can see how they'd be desperate for the money – after all, when you take away children at a rate that now is more than 80 percent above the national average, those costs really mount up.

But what really makes ransom an insane practice, even by the standards of child welfare agencies, is the fact that not only does it do enormous harm to the children and their parents, it actually costs the government money.

Collecting ransom actually increases the cost of foster care. No impoverished family ever will come up with the full cost of foster care – instead they are charged for their "share" of the costs. But for every extra day a child is held in foster care because the birth parents haven't paid their "share" of the costs, the state has to foot the entire bill. The birth parents wind up in a deeper and deeper hole and the state winds up paying more and more.

Even if the birth parents scrape together the money to get their child back; or, in cases like the Kirkman case, where the child already is home, the payments only make it harder on the family financially, a particularly steep burden for families that already are poor.

Poverty often creates stress can lead to actual child abuse, or poverty itself is confused with neglect – so the ransom increases the chances of actual child abuse and/or having the child taken away again because of poverty. Once again, you harm the child – and cost the state more money.

So why do these policies exist? Because grandstanding state legislators love them. They get to issue press releases about how they're "cracking down on child abuse" and since in their fantasy world, only parents who are evil, sadistic brutes lose their children to foster care, it's only fair to make 'em pay, right?

Not in the real world.

The Canadian Press, CBC News, CTV News, and the Calgary Herald all have stories about the latest turn in the Kirkman case. And so does the Eugene Register Guard, which has done a far better job than the Oregonian on the whole case.

In the Register Guard story, I posed a question, which I'll repeat here: If DHS is supposed to do everything it does "in the best interests of the child," how is it in this child's best interests to make his family poorer and inflict even more stress?

Noah Kirkman freed from Oregon foster care

Noah Kirkman, the 12-year-old Canadian boy trapped in Oregon foster care for nearly two years, is back with his family in Canada – which is exactly where he wants to be.

OK, I don't actually know for a fact that the last part of the previous sentence, about where he wants to be, is true. Rather, I'm relying on the Kirkman family's lawyer, who said this when explaining to the Calgary Herald why Noah was allowed to go home two weeks earlier than expected. The lawyer said:

There was a sense during the trial that Noah was being pressured by the family with whom he was staying (in foster care). My belief is that when social services had the opportunity to find out Noah really wanted to be home, the extra time was unnecessary.

But my version, in which I simply treat an assertion by the side I favor as fact, is no different from the way the Portland Oregonian
led its story on the hearing where the judge first decided Noah could go home. The Oregonian wrote that:

An Oregon judge Friday ordered a 12-year-old boy sent back to Canada, his home country, even though the boy doesn't want to go.

Only farther down in the story is it mentioned that this simply was a claim from the judge and a psychologist.

In fact, neither I nor the Oregonian reporter actually knows what Noah Kirkman wanted then or wants now. That's why it's journalism 101 that any such claim in a news story is supposed to be attributed. And it's why Oregonian coverage of this case deserves an extra measure of skepticism.

Foster care in Oregon: Noah Kirkman probably is going home (and the Oregonian doesn’t like it one bit)

MEMO TO JUDGE KIP LEONARD: "SOCIAL DECISIONS" ARE NONE OF YOUR BUSINESS

After nearly two years of needless foster care, Noah Kirkman probably will be going home. Thanks largely to public pressure, an Oregon judge has relented and ordered Noah returned to his native Canada to live, at least initially, with his grandparents.

But it won't happen immediately and there is no deadline. So there is plenty of time for mischief.

While it's not likely, the judge could change his mind. The Oregon Department of Human Services, which dithered for nearly two years, could stall the process further. Once back home, Noah's fate will be up to child welfare agencies in Canada, which generally are no better than their American counterparts. And while a kinship placement beats stranger care, there is no reason Noah shouldn't have been returned directly to his mother, Lisa Kirkman.

So it's a victory, but a small one and a fragile one. And it never can undo the damage done to Noah by Oregon's DHS, and a tendency among some in Oregon toward a smug sense of superiority over pretty much anyone who isn't from Oregon, a smugness nurtured by the state's largest newspaper.

On the other hand, it illustrates the value of the one area in which Oregon is the most progressive state in America: opening court hearings in child welfare cases.

The basics of how Noah Kirkman wound up in foster care are in this earlier post to the Blog, so I won't repeat them here.

A JUDGE INFLICTS HIS BIASES

But the fundamental failure in this case and so many others was aptly, if inadvertently, summed up by the judge who prolonged it for so long, Lane County Juvenile Court Judge Kip Leonard:

"I am confident in my legal decision that Noah return to Canada," said Leonard, according to the Eugene Register-Guard. "I am not as confident in my social decision."

Your what?

It is not a judge's job to make "social decisions" and it aptly sums up the arrogance of the child welfare system that Judge Leonard seems to feel otherwise.

It is precisely the penchant to make "social decisions" as in, "never mind what the law says, I think this child would be better off with people who are more like me" that wreaks havoc in the lives of tens of thousands of children caught up in the system. These are children trapped in foster care precisely because their parents are not like "us" – they are overwhelmingly poor and disproportionately minority. And that's precisely why the U.S Supreme Court has made clear that child welfare agencies and judges are not free to engage in "comparison shopping" between foster parents and birth parents. They cannot reach the issue of "best interests" until determining that the birth parent is unfit.

Though the instruction is widely ignored, the law effectively instructs judges and even child welfare agencies to stay the hell out of "social decisions." The failure to heed this instruction helps explain why Oregon takes away children at a rate 70 percent above the national average.

Contrary to what the Oregonian claimed in its commentary-disguised-as-a-news-story about the case today, it is not the job of child welfare agencies or judges to "try to find the best placement for the child." That is a something they don't get to do until and unless the judge finds that a birth parent is unfit. Until then, their job is supposed to be limited to deciding if it is safe for the child to live with her or his birth parents. The question is whether the parent can provide a minimum standard of care, not some judge's arbitrary notion of what is "best." (In this case even that was going too far. In this case, the job of DHS and the judge was to turn the case over to Canadian authorities so they could make that determination.)

That's not because children don't deserve more than the minimum – rather, it's because when we let child welfare agencies and judges decide what is "best" we open a Pandora's Box of racial, class and geographic biases. And that is contrary to the best interests of all children. (The way we help children get more than the minimum is to provide the help their own parents need to give it to them.)

MY COUNTRY CAN BEAT UP YOUR COUNTRY

A pure "best interests" test almost always becomes a "better off" test. The foster family is better off financially so it is assumed that the child will be better off with them. The white, middle-class family with the tidy home is so much more like what people in the system themselves usually know best, that they almost never will view a child as "better off" with poor Black birth parents. And, of course, my country is always better than your country.

Recall the case of nine-year-old Sean Goldman, the boy from New Jersey abducted by his Brazilian mother. He lived in Brazil for five years while his American father fought to get him back. The Brazilian courts were not about to cede their obligation to decide what was best for this child of a Brazilian mother to authorities in the United States.

Public opinion overwhelmingly was with the father – in America, anyway. No one in the United States even thought to apply a pure "best interests" test, even though Sean had been living in Brazil with little contact with his father since he was four years old, and probably didn't want to go back to his father – which is exactly what his Brazilian relatives claimed.

It isn't even just other nations. After Florida botched a case that also involved Wisconsin, a Wisconsin columnist wrote an amazingly smug column about how people in Wisconsin are simply so much more generous and caring and it could never possibly happen there. (For the record, Florida probably has a better child welfare system overall, and Miami does a far better job than Milwaukee.)

It's well worth keeping the Goldman case in mind when considering how the Oregonian covered Friday's hearing – the first time it deigned to cover the story at all.

In addition to wrongly describing the proper standard to apply as the child welfare agency's and the judge's opinion of what is "best," the Oregonian led its story as follows:

An Oregon judge Friday ordered a 12-year-old boy sent back to Canada, his home country, even though the boy doesn't want to go. … On Friday, the boy did not appear in court, but he did spend a half-hour talking privately with Judge Kip Leonard ahead of the hearing. Leonard said they talked about catching mice and snakes, middle school and family. "He told me where he wants to be," Leonard said. "He told me he'd like to stay in Oregon and have his mother and grandparents come to visit."

Apparently, Noah didn't know that his mother isn't allowed to cross the border because of her "criminal record" – growing marijuana for a medical marijuana dispensary.

In addition, Noah's contact with his mother has been limited to closely-monitored fifteen-minute phone calls every two weeks. His mother says the calls are censored. She says she was not allowed to tell Noah she was fighting to get him back or even to tell him how much she missed him. [UPDATE, MAY 30: Lisa Kirkman told the Canadian Press the calls sometimes didn't happen for three to six weeks - because DHS would allow them only during their office hours, when it was more convenient for DHS to have a censor on the line. Those hours often conflicted with Lisa's work and Noah's school. Lisa couldn't even talk to Noah on his birthday, because it fell on a Sunday this year.]

Now, add to that being bounced from foster home to foster home before finally landing in the one he likes, and one can see how Noah Kirkman might feel abandoned by his mother and resentful of her.

But let's assume none of that was involved in Noah's feelings. (We're also assuming that what third parties have said on Noah's behalf is accurate. UPDATE: MAY 30: Noah's grandparents say he is, in fact, excited to be going home. In any event, there is no excuse for the Oregonian portraying Noah's alleged desire to remain in his foster home as known fact, without so much as attribution.)

But again, let's assume he doesn't want to go home. It's still not his decision. No more than the seventh grader who doesn't want to leave his middle-school crush has the right to stay behind if his parents move to another city.

Sean Goldman almost certainly didn't want to return to New Jersey after living in Brazil from age 4 to age 9, and having almost no contact with his father for much of that time.

If I kidnap a child at birth, flee to Canada, take really good care of him, and return five years later, that child definitely won't want to return to his parents. It's hard to imagine a newspaper siding with the kidnapper. But siding with the kidnapper is the logical outcome when "social decisions" are allowed to replace legal ones, and an arbitrary definition of "best interests of the child" is allowed to supplant the best interests of children to live in a just society.

ONE STEP UP FROM VOODOO

The Oregonian story goes on to dredge up everything it can find to cast Noah's mother in the worst possible light. There are lots of weasel words like "may have been" and "questions about" and vague attribution like "testimony … indicated…" There's lots of dependence on "psychological assessments" which, when it comes to reliability, are about one step up from voodoo. (See the story on Page 13 of this issue of the New York City publication Child Welfare Watch for an excellent discussion of how they really work. Or check out the Michigan Race Equity Review, which documents cut-and-paste "psych evals," in which evaluators take boilerplate they wrote about one case and apply it to another.)

Nevertheless, it is perfectly reasonable to include this material in a news story, though there should have been much clearer attribution. What is unreasonable is the fact that nowhere in the story does Noah's mother, or the grandparents, or her lawyers get a chance to respond. And there is no discussion of the consequences of moving Noah from foster home to foster home.

The Oregonian also gives DHS a free ride in defending why the case took so long. According to the Oregonian:

Gloria Anderson, international affairs manager for Oregon's child welfare system, said the state worked closely with Canadian officials from Day One to find a way to get the boy back to his home country.

And the reason about 700 days passed since "Day One" before it might happen is…? The Oregonian doesn't say.

In fact, it is likely that DHS dithered all this time precisely because of the Oregonian, which whipped the state into a jingoistic frenzy after DHS sent a child to relatives in Mexico who killed her. DHS' actions suggest it's been terrified about international cases ever since.

The Oregonian continues:

Because the boy was in Oregon and under the state's legal jurisdiction, simply putting him on a plane and delivering him to Canadian child welfare officials was not an option, Anderson said. "We have an obligation, a legal and ethical obligation to ensure his safety."

Translation: We in Oregon know more about child welfare and care more about safety than those dumb Canadians. (Or, as they might put it in Brazil: We Brazilians know more about child welfare and what's best for Sean Goldman than those dumb Americans.)

And the evidence for this would be? In fact, delivering Noah to Canadian child welfare officials does every bit as much, if not more, to "ensure his safety" as leaving him to the tender mercies of the Oregon foster care system.

BOLSTERING THE CASE FOR OPEN JUSTICE

This case also is more evidence of the urgent need to end the secrecy that surrounds child welfare.

Nothing moved on this case until Lisa Kirkman went public. Nothing happened until The Register-Guard wrote a detailed, and scrupulously even-handed, story about the case. Then it picked up steam in Canadian media and ultimately in Oregon – except for the Oregonian. It looks like only then did DHS decide that the political winds had shifted and sending Noah home would do them less political damage than keeping him indefinitely in Oregon.

But those news accounts wouldn't have been enough, and might not even have been possible, if not for the fact that in Oregon, reporters who might otherwise be too skeptical to even consider Lisa Kirkman's pleas, can go into court to see for themselves.

Not only is Oregon one of only about 17 states with open court hearings, Oregon may be the only state where judges can't close them on a case-by-case basis.

All of which infuriated Judge Leonard. According to a brief item that appeared on the Register Guard website last night, but does not appear to be there today, the judge attacked the media for even covering the case – arguing, as bad judges and bad child welfare administrators always do, that it would be harmful to the child. In fact, it only harmed the reputation of Judge Leonard. And with the press looking on, he no longer could substitute his personal whims and prejudices – his "social decisions" - for the law.

There's one other piece of good news in all this: Judge Leonard is retiring.