Child welfare in America: Important stories from Iowa, Chicago, D.C. and Michigan

UPDATE, JANUARY 3: If you've had an experience with child protective services in IOWA, and are willing to share your story publicly, using your real name, the columnist for the Cedar Rapids Gazette whose work is discussed below invites you to post to this open thread on her Blog.

           The year 2011 ended with some excellent journalism about child welfare across the country.

            Last September, the Center for the Study of Social Policy issued a report on the racial bias that permeates child welfare in Cedar Rapids, Iowa.  That’s no surprise.  Iowa tears apart families of all races at one of the highest rates in the nation, four times the rate of neighboring Illinois, when rates of child poverty are factored in.  (Of course it’s Illinois where independent monitors say the emphasis on family preservation has improved child safety.)

            Across the country, states with the highest rates of removal also typically are among those with the worst rates of racial bias. Iowa is a case in point; South Dakota is another.

  

            Now, Jennifer Hemmingsen, a columnist for The Gazette in Cedar Rapids is telling some of the stories behind the statistics.  There’s an overview here, then a story about a perfectly fit father denied custody of his child.   That’s followed by a story about how the man’s extended family was turned down as well.  The child was adopted by strangers. 

            The New York Times has a very good story from its news-gathering partner, the Chicago News Cooperative, about cases in which adoption is not always the happily-ever-after it’s cracked up to be – particularly when the state stops paying the adoptive parents. NCCPR predicted this would happen in 1997, when Congress passed the so-called Adoption and Safe Families Act which reinforced the take-the-child-and-run mentality in much of American child welfare, and threw in bounties to states for adoptions – bounties the states can keep even when the adoption fails.  We have some context for the Times story, including what little is known about the extent of the problem on our website here.

            For an excellent overview of how American child welfare got into this mess, and some of the ways to fix it, check out this Blog at the Huffington Post from Prof. Matthew Fraidin of the University of the District of Columbia School of Law.

            Another law professor, Vivek Sankaran of the University of Michigan Child Advocacy Law Clinic wrote an excellent op ed column for the Detroit Free Press on the widespread confusion of poverty with “neglect” in Michigan – a problem made worse by the state’s dreadful settlement with the group that so arrogantly calls itself “Children’s Rights.”  Sadly, Oklahoma soon may be headed for a similar fate.

Foster care in DC: District’s own expert panel blasts widespread needless removal of children

            It’s not unusual for outside agitators – like me – to say that a given child welfare system is taking away a whole lot of children needlessly.  It’s quite unusual when the charge comes from a panel of experts named by the community’s own government leaders.

            But that’s what happened last month in Washington, D.C., in the form of a scathing report about the D.C. Child and Family Services Administration.  The report was issued by the District’s child welfare Citizen Review Panel (CRP).  Federal law requires at least one such panel in every state to examine child protective services agencies. 

           

            The D.C. panel was appointed by the mayor and the D.C. Council.  It’s quite a distinguished group.  Members of the panel include a former social services administrator in Maryland who now is the legislative policy associate for the National Association of Public Child Welfare Administrators – a trade association for agencies like CFSA.  Another member spent 23 years in human services, including five years as a CPS caseworker.  Another is a senior attorney for the D.C. Children’s Law Center – the group that represents children in child welfare cases in the District.  Another served as Coordinator of Child Abuse and Neglect for the D.C. Public Schools.

            The Review Panel was disturbed by the large numbers of children taken from their parents by CFSA who were sent home again within four months.  Typically, anywhere from 18 to 35 percent are sent home that quickly.  Depending on how you run the numbers that’s an average of anywhere from 161 to 225 children per year.

 It’s not that the CRP doesn’t want children returned home quickly.  But it raised an obvious question: If the children could be returned within four months, did they really need to be taken at all?  After carefully reviewing a random sample of such cases, the CRP concluded that, in the overwhelming majority of cases, the answer was no. Said the panel:

This study concludes that, when children leave foster care quickly – a significant and longstanding feature of the District’s child welfare system – it is likely that CFSA removed the child unnecessarily.

            Indeed, the report found that only 25 percent of removals met the legal standard for taking a child away on the spot, without even asking a court’s permission first.  Such removals are supposed to take place only when CFSA “has reasonable grounds to believe that the child is in immediate danger” and removal is necessary to eliminate the danger.  Yet CFSA uses this grab-the-child-first-ask-the-court-later power in 97 percent of all removals.

            Now consider the implications:  75 percent of the cases did not meet the standard for an emergency removal, and that’s pretty much the only kind of removal CFSA does.  That means that every year, D.C. tears anywhere from 121 to 169 children from their families unnecessarily. 

            But that’s probably an underestimate.  Because when families get decent lawyers, the number of children sent home fast soars.

Nearly three years ago, Prof. Matthew Fraidin of the University of the District of Columbia Law School presented the results of his law students’ work representing families whose children had been taken away by CFSA.  (His findings are included in material he released at a joint news conference with NCCPR in January, 2009.)  In fully 60 percent of the cases the children were returned within three months – and in most of those cases, they were returned within a week.

            If the real number of children who can go home that quickly is 60 percent, then the real number of wrongful removals every year is nearly half of all the children taken away by CFSA.

            “For these children,” notes the report, “these are severe, possibly life-changing events.” 

OTHERS REACH SIMILAR CONCLUSIONS

            The review panel and Prof. Fraidin are not alone in sounding the alarm about wrongful removal in the District. 

            ● Organizations that provide “guardians ad litem” for children in child welfare cases typically only complain when a child welfare agency isn’t taking away even more children.  So it speaks volumes that Judith Sandalow, executive director of the Children's Law Center - the group which provides such representation in D.C. wrote a letter to The Washington Post in which she estimated that at least 100 DC children every year are taken from their families unnecessarily.  She writes that "These removals traumatize children and devastate families." 

            ● The independent monitor overseeing the long-running class-action lawsuit settlement in the District also examined a sample of cases. The CRP report points out that the monitor found that CFSA’s action in immediately removing the children was justified in fewer than half of those cases.

One of the strongest features of the CRP report is the case examples, like this one:

In one case, CFSA refused to release two children to their own mother who had done nothing wrong. The children’s maternal grandmother was a recovering substance abuser and had been clean and sober for a substantial amount of time. Their mother reasonably relied on the grandmother’s babysitting. Unfortunately, the grandmother relapsed one evening and left the young children alone. CFSA could not immediately locate the mother and reasonably took custody of the children. But when the mother showed up at CFSA that same day, CFSA inexplicably refused to release her children to her, despite its legal obligation to release them to her “with all reasonable speed.”Instead, CFSA kept the children in foster care for three days and then released them.

The report provides an excellent discussion of precisely what child welfare agencies so often forget – the need to balance harms:

Many parents have had the experience of a toddler crying when dropped off at preschool – even with a parent giving him a goodbye hug, assuring him that she will return within hours, and turning him over to a classroom full of unfamiliar faces.

Now imagine that same child taken away by a stranger, over the parent’s objection, and without anyone able to tell him what will happen next or even when he will see his parent again. Days pass and people still cannot explain what will happen next, or why he hasn’t been able to see mommy for a long time. Weeks pass, and he gets to see his mom for brief visits, and then is taken away again, with no idea when he will see her again. It is not hard to see the emotional toll these separations impose on children or their parents.

On the other hand, very real safety concerns are at stake. Some children do suffer serious abuse and neglect at the hands of their parents and in some cases the only available response is to separate the child from the parent because the emotional harm of that separation is less than the harm inflicted by the parent’s abuse or neglect.

But over and over again, the report found, CFSA flunks this balance-of-harms test.

CFSA: NOTHING’S WRONG – AND LOOK HOW WE’RE FIXING IT!

In a response to the repot most notable for its sheer snottiness (read it and see for yourself – it’s included with the report) CFSA insists that every single decision it made in every one of these cases was the right call.  On the other hand, in a very good story about the report in The Washington Post, CFSA’s acting director talks about how it’s reduced entries into care this year (though even at the reduced rate, children in Washington D.C. are torn from their homes at a far higher rate than in New York, Chicago and Miami, among other cities, even when rates of child poverty are taken into account).  She also discusses new programs to keep families together.

So apparently CFSA’s position is: Look at all we’re doing to fix the problems we deny ever existed in the first place!

In a future post: More case examples, and CFSA’s appalling response to the report. 

Shedding light on foster care abuses

A new law review article provides more evidence that “sunshine is good for children”

In a 2009 post to this Blog, I wrote about how a tiny newspaper in a small town in Tennessee exposed an injustice:

In 2005, the Lebanon (Tenn.) Democrat, revealed that, at least twice, a local judge ordered Mexican mothers to learn English – or lose their children forever. (Access to the story may require free registration on the newspaper's website.) In one case the child still lived with the mother, in the other the child was in foster care. In both cases, the mothers spoke an indigenous language rather than Spanish.

NCCPR helped call the cases to the attention of national media. The Los Angeles Times and The New York Times did stories, the Southern Poverty Law Center heard about the case from news accounts and got involved. The mother at risk of losing her child had her case dismissed. In the other case, where the child already had been placed with affluent foster parents, custody was awarded to the birth father. The judge was disciplined by the Tennessee Court on the Judiciary.

The story of how the Lebanon Democrat got the story is almost as compelling.

Court hearings in Tennessee are at least nominally open to the press and the public.  Judges often throw reporters out, but at least they can sit there until it happens.  As a matter of principle, when the Lebanon Democrat was interested in a case, they’d send a reporter who would stay until the judge noticed and threw him out.

It was while waiting for the case that originally interested him that the reporter, the late Brooks Franklin, saw and heard one of the cases involving the Mexican mothers.

In most states, Franklin never would have gotten in the door.  In most states, court hearings in cases of alleged child abuse and neglect remain closed to press and public.

As with just about all the rotten things done by people in child welfare, closing court hearings is, of course, supposedly for the benefit of the children – in fact, it’s so child welfare agencies can cover up their mistakes and judges can get away with what that judge tried to do in Lebanon, Tennessee.

A fair number of states, however, do have open court hearings (the exact number depends on how one defines “open”).  And of all the courts to open them, not one has closed them again.  That’s because the Chicken Littles were wrong.  None of the harm predicted by opponents of open courts came to pass.  As the Pittsburgh Post-Gazette reported in this comprehensive series nearly a decade ago, all over the country one-time opponents have become converts to openness.

We have a summary of the series and other information on the case for open courts in NCCPR's Due Process Agenda.

The former chief judge of New York’s highest court, Judith Kaye, opened these hearings in New York in 1997.  Says Judge Kaye: “Sunshine is good for children.”

And now, Prof. Matthew Fraidin, Associate Professor of Law at the University of the District of Columbia David A. Clarke School of Law significantly advances the case for open court hearings in a new article in the current issue of the Maine Law Review.  It’s available by clicking here and then clicking on the download link at the top of the page.  And see also this story from the San Jose Mercury News on legislation that would  open these hearings in California.

It’s been said that “Justice must be seen to be done.”  That makes opening courts the first step toward doing justice for children.

Foster care hearings: “Sunshine is good for children”

Matthew Fraidin is Associate Professor of law at the David A. Clarke School of Law at the University of the District of Columbia. Two years ago, he started a clinical program in which students represent exclusively birth families in child maltreatment cases – thereby doubling the total number of such programs across the country (the first is run by NCCPR's President, Prof. Martin Guggenheim, at New York University School of Law). His previous work has included representing both children and parents.

Below are excerpts from testimony Prof. Fraidin gave last week at a hearing of the D. C. Council, in which he calls for opening court hearings in these cases to the press and the public. The title for his testimony, "Sunshine is Good for Children" is a quote from the former Chief Judge of New York's highest court, the Court of Appeals, Judith Kaye, who ordered child maltreatment hearings opened in that state.

In my law students' cases, more than 60% -- that is 60% -- of the children taken from their families have been returned without ever being found abused or neglected. Yes, more than 60% of the children taken from their living rooms and schoolhouses, from their brothers and sisters and teachers and grandparents and friends – more than 60% of the children housed in foster care with strangers! – do not need to be there, by the government's own admission. They take the children, the Court rubber-stamps the removal, and only later, when my students find the information the agency missed, explain to the agency the information it distorted, and demonstrate that the child would be safest and healthiest in her own home, does the government agree – voluntarily! – to send the child home and dismiss its own case. Secret proceedings means that you can't meet the children whose lives are turned upside-down, perhaps never to be righted – for no reason.

You can't observe the rubber-stamp hearings. You can't watch a case worker hem and haw an explanation about why a distraught child hasn't been referred to a therapist, despite a court order directing the referral. You can't see a lawyer guessing at his client's position, rather than knowing it, because the lawyer hasn't met with the client since the previous court hearing. You can't sit in the back of a courtroom and shake your head in frustration and disgust at a judge who openly flouts the law, refusing to let a child live with her beloved aunt, simply because it is that judge's "personal policy" not to allow children to live with relatives unless [the Child and Family Services Administration (CFSA), D.C.'s child welfare agency] agrees. You can't know what's going on, and you can't do anything about it.

Operating behind an impenetrable iron curtain that is anathema to American governance, the Family Court deprives children of the checks and balances they need for health, safety, and stability.

I am here to testify that sunshine is good for children.

D.C. IS OUT OF STEP

The District of Columbia is out of step with a growing national trend by guarding the walls that, in turn, guard adults' secrets and their errors of commission and omission:

• Judges say open courts are good for children: The National Council of Juvenile and Family Court Judges issued a public Resolution in 2005, attached to my testimony, supporting open courts. The National Child Abuse Coalition, the Council of State Court Administrators and the Conference of Chief Justices all agree that states should have discretion to open their courts. …
  
• Seventeen states have opened child welfare proceedings …
  
  
• No state that has moved to transparency has ever shut down again. Many states opened child welfare hearings on a "pilot project" basis, and none retreated to the darkness of secrecy.
  
• Doubters are convinced:
  Even judges and children's advocates who initially were vigorously opposed to transparency become enthusiastic converts, convinced of the benefits to children. After Minnesota's courts had been open for a year, the Minneapolis Star-Tribune noted that "the greatest fear--that troubled children would be victimized and embarrassed by sensationalized new media coverage and community scorn--has yet to be realized."
  
• Open court proceedings empower children: According to Minnesota Judge Heidi Schellhas, "Open child protection proceedings may…assist the psychological recovery of the abused children…'victims of abuse often carry their burden alone, in secret' and closed proceedings simply 'continue the notion that something shameful has happened, and that no one should be told.'"…
  

We cannot be sure adults are serving children unless we can see them. If adults' actions are hidden behind a wall, we are literally in the position of having to take the adults' word that they're doing their job. …

A CASE IN POINT

One of my former child clients, now dead by gunshot, asked his group home not to house him with a roommate because, he admitted, he was disliked by some of the other children and felt uncomfortable with them. The group home ignored him, as well as my similar request on his behalf. Another resident of the group home – also now-deceased by gunshot -- came in and stabbed my client in the shoulder with a screwdriver. Bad enough, but the agency then proposed to bring both boys to the CFSA offices to put them in a room together to "mediate the dispute." No one knew this went on – no one has ever known until you, now, some six or more years later.

Same child: in addition to being stabbed, the child was victimized when his new roommate allowed other boys into the shared room. The other boys stole some of my child client's clothing. It was all he had, in two garbage bags and a battered suitcase. He'd been in foster care since he was nine years old, and had carted sneakers and clothing to the dozen or more homes he'd lived in. He was enraged by the theft, and broke some of the thief's property and kicked a hole in a wall. Arrested for the destruction of property, he was locked up overnight, for the first time ever, and charged as a juvenile. The CFSA worker was set to tell the delinquency judge that the child's best interests would be served by going to Oak Hill [D.C.'s juvenile jail] because it would "be therapeutic for him." I remonstrated with the worker in the courthouse hallway and burned up telephone lines for hours until I located a foster parent with an empty bed and persuaded CFSA that a foster home would be more appropriate for the child than Oak Hill.

Until now, no one has known about this.

No one has known until now that the boy became a loving, gentle, doting father. The baby's mother went off to finish her final semester of college, and the ward was the baby's only caretaker. No one has known that the adults working for CFSA refused to allow the young dad to live with his baby. CFSA had no teen-father placements, they said. They assigned him to programs and buildings that did not allow babies. So he "absconded" every night, meaning he went to his mother's home, or his mother-in-law's home, or to his grown sister, or to an aunt, or to a friend or anywhere he could keep his baby. Demerit after demerit after demerit from the adults at CFSA, harassing him, adding stress to an already-burdened life.

No one has ever known that the adults at CFSA later sought again and again to have this child's neglect case closed because he wasn't appreciative of the services they were offering.

No one has known until now, from this testimony, that when my child client became an adult and buckled under the stress and picked up minor adult criminal charges, the adult employees of CFSA and [the D.C. Office of Attorney General] OAG strenuously resisted my pleas and my client's to install an operating telephone in his residence. See, he was wearing an electronic ankle bracelet, and needed the telephone to be working to connect with the bracelet, so that he would not violate his conditions of release on the criminal charge. The adults working for CFSA and OAG said, again, that it would be better for the child to go to jail – the D.C. Jail, this time – than to reside in their care. So they refused to install the telephone to make sure he would be locked up. Then, they could close his case and get him off the rolls. Voila! Lower caseloads!

The postscript is, of course, my child client's death. CFSA finally having worn down the Family Court Magistrate Judge, the child's case was closed a few months before he turned 21. A bright, sensitive, sweet guy, he had lived in dozens of foster homes, group homes, with his mother and grandmother, with his sisters, and in at least one RTC, and had no ties to anyone but his wife and children. He had attended more than a dozen high schools without graduating. He had a marijuana habit, and maybe others, that seemed relatively low-level to me, but showed no signs of abating. He had been trying to hold down a job, and also had been stealing drug dealers' small stashes and selling those to support his two children.

He was shot at 1408 Girard Street on the day police were installing a crime camera around the corner. He made the paper for that. He made the paper again, though I'm the only one who knew it, because he wasn't identified, when Lafonte Lurie Carlton, his killer, was released a few years later from Oak Hill and killed again.

My child client would have wanted Carlton to be released, by the way. He knew children need lots of chances and lots of help. He also knew, painfully, that adults often fail children, even adults who mean well and certainly, adults who don't care or can't be bothered or who have other priorities. Would that dear child still be alive if the adults who hurt him and ignored him and despised him had been seen for what they'd done? Might they have straightened up a little and flown a little righter if they'd known that, like other adults, they could be held accountable for their actions?

SHIRKING RESPONSIBILITY

It's ironic that teaching our children "responsibility" is a major tenet of parenting. We want children to grow up to understand that that their actions have consequences. While parents try to teach this value to their charges, the adults surrounding children in the foster care system are not responsible for what they do and don't do. In our secret system, adults don't have to live the value, to practice what they preach.

Yes, we must ensure that the right adults have the right information to help children. It is equally important, however, to make sure we don't give adults a blank check to go along with that power. We have to make sure they use their power to help children. We are all responsible and we all must watch: family, friends, neighbors, the press. No one can be healthy in the dark: sunshine is good for children.