Foster care lawsuit in Nevada: How the National Center for Youth Law planted the seeds of its own defeat

            I’ve written often here about the failure of my fellow liberals on child welfare issues.  But if you want to see a good old fashioned failure of right-wing extremism, just check out the decision by Federal District Judge Robert C. Jones throwing out a lawsuit against the child welfare system in Clark County (metropolitan Las Vegas) Nevada.  (Check it out when the decision in Henry A. v. Willden becomes generally available online, that is; right now I’ve only been able to find it through a federal courts database that requires registration; but this story in the Las Vegas Review Journal sums it up well.)

            In the course of throwing out a lawsuit brought by the National Center for Youth Law (which should not be confused with the more progressive Youth Law Center), Judge Jones essentially ruled that, under the U.S. Constitution, the rights of children thrown into foster care are perhaps one step above the rights of prisoners of war under the Geneva Convention.  NCYL plans to appeal, and we’d better hope that appeal is successful.

            It’s not that this was a very good lawsuit to begin with.  As I’ve discussed previously on this blog, NCYL has the same approach to litigation as the group that so arrogantly calls itself Children’s Rights: Whatever you do, don’t raise the issue of children not needing to be taken away in the first place.  So NCYL’s suits tend to produce the same mediocre results as CR’s, which is why I’ve taken to referring to the California-based NCYL as “CR West.”

            For example, NCYL is waging the same war against grandparents as CR.  Indeed, the one good thing about Judge Jones’ decision is that it threw out NCYL’s bizarre claim that foster children have a constitutional right not to be placed with their grandparents or other relatives if those relatives can’t comply with every hypertechnical licensing requirement.

This, of course, illustrates the problem with claiming to “represent” children through adult “next friends” who may barely know them or who, in this case, may simply be current or former foster parents who may put a shared ideology ahead of what the children really want. It’s hard to imagine that thousands of children really are begging their caseworkers by saying something like “Please, please don’t place me with grandma unless her house has precisely the square footage required in section 4 subsection A(2) of regulation 456!”

            But the rest of the lawsuit might have made things a little better. And by setting such an appallingly low standard concerning what foster children are entitled to, the decision, if upheld on appeal, could make things much worse.

            The great irony in this – and the biggest lesson for NCYL, CR and all the others who willfully ignore the problem of wrongful removal of children is that ignoring that problem helped plant the seeds of NCYL’s defeat.

            That is evident from this section of the decision, on page 12:

Plaintiffs have failed to allege that Defendants “did anything more than place foster children into an already broken system.” … Moreover, the Complaint does not state that Defendants created or increased the danger to children. Based on these pleading failures, this claim for relief is dismissed.

In addition, Defendants are entitled to qualified immunity on this claim. In this regard, Plaintiffs have not provided any factual assertions that the Defendants increased the danger to Plaintiffs. [Emphasis added.]

In contrast,

           ● Had NCYL taken note of Nevada’s extremely high rate of child removal – more than 50 percent above the national average.

           ● Had NCYL pointed out that many of those removals are unnecessary (something well documented in a casereading by Prof. Leroy Pelton of the University of Nevada-Las Vegas School of Social Work)

          ● And had NCYL included cases of wrongful removal among their “named plaintiffs”

then they could, indeed, have made the claim that Clark County and the State of Nevada had actually made things worse for the children, and the judge would have had a lot more difficulty dismissing the case on that ground.

           Of course, given the judge’s clear hostility to the whole lawsuit, even had NCYL acknowledged the existence of the elephant in the room, judge Jones might well have ruled against them anyway.  But there’s still a lesson for those times when cases are brought before more reasonable judges: NCYL’s embrace of a take-the-child-and-run approach to child welfare got in the way of making the strongest possible case for the children it sued to protect. 

Gambling with children’s lives: Encouraging foster care panic in Las Vegas

It's hard enough for a family caught in the net of child protective services to jump through all the hoops thrown at them by one agency – imagine trying to cope with two. Imagine doing everything required of you by the agency you thought to you had to please, only to find that there's a second, rogue agency out there ready to march into court, contradict the first agency, and demand that the judge keep your children in foster care even longer. And there's nothing that you, or even the first agency, can do about it.

There are a few places around the country like that. And in one of them, the rogue agency is sinking mighty low to try to keep it that way.

The place is Clark County, Nevada – metropolitan Las Vegas. And, though they don't realize it, the District Attorney's office there is putting children's lives at risk in order to cling to its power to stomp all over not only families but the actual child welfare agency.

I'll get to how they're doing it below. But first, some context:

The first thing to know about Clark County is, it's a mess. The State of Nevada takes away children at a rate 70 percent above the national average – a rate double and triple the rate of child welfare systems nationally recognized as, relatively speaking, models.

And Clark County used to be notorious for running what may have been the nation's worst baby warehouse – a parking place shelter where conditions rivaled those found in third world orphanages. I'm not kidding. Just a few years ago, hundreds of children, including infants, were practically stacked up like cordwood in the overflowing gym of a baby warehouse that carries the Orwellian name "Child Haven."

The second thing to know about Clark County is that, in recent years, things have gotten a little better. Child Haven once warehoused hundreds of children. Now, on a typical day, it houses only ten or fewer. And while wrongful removal remains a huge problem, it's a little bit less of a problem than it used to be, thanks to changes at the county's real child welfare agency, the Department of Family Services.

But there are people who, it seems, view conditions a few years ago as "the good old days." And, unfortunately, they work in the Clark County District Attorney's office – which runs that second, rogue child welfare agency I was talking about.

PREVENTING JUDGES FROM HEARING ALL SIDES

In most of the country the child welfare agency decides what the government's position will be in child welfare cases. They recommend to a judge whether a child should be returned home, or adopted, or kept in foster care. The lawyers who go into court follow the agency's instructions – and the judges almost always do what the agency wants. Children have their own "law guardians" and parents also have lawyers – though the quality of parent representation often is dismal.

A judge can't make the best possible decision unless all sides – child, parents, and child welfare agency, can make their best case in court. Shut out any of those parties and you fail the children.

In much of the country it's the parents who are shut out, either because they get no lawyer at all, or they get one so overwhelmed that they could do as well walking into court with a cardboard cutout in a three-piece suit.

But in a few places, it's actually the child welfare agency that can go unrepresented as well. One of those places is Clark County.

In Clark County, the lawyers who represent the government report not to the child welfare agency but to the elected District Attorney (who, by the way, is up for re-election this year). So if the child welfare agency wants to return a child home, or doesn't want to take a child away in the first place, and the D.A.'s office disagrees, the D.A.'s office is the one who makes the recommendation to the judge – the child welfare agency is effectively silenced.

The absurdity of this is obvious. So it's no wonder the director of the American Bar Association Center on Children and the Law says the way most of the nation does this is right, and the way Clark County and a few other places do it is flat wrong.

I HAVE A LITTLE LIST

This year, some Nevada legislators started to see the absurdity of the Clark County arrangement as well, and they started talking about changing it. Desperate to keep this part of its empire, the D.A.'s office fought back – with a grossly-misleading campaign of fear and smear.

They poured through all their case files and came up with 82 cases in which, they allege, children would have been left in dangerous homes if not for the heroic intervention of the Clark County District Attorney's office. A Las Vegas police captain released a similar list of his own. In both cases, they did not release the actual files, not even files with identifying information removed. Instead they released only their own summaries of each case – in other words, their own spin, which might be a complete and accurate account, and might not – with no way to check. But this was enough for an "investigative" reporter at KLAS-TV.

This reporter's definition of "investigative" was to do little more than take some of the summaries handed to her by the police and the D.A. and read them out loud – accompanied by shaking her head "no" when about to quote the side of the story with which she disagreed. And brief quotes were all that side got. The only on-camera interviews were with the police captain and an assistant district attorney. There were two stories, neither of which mentioned the underlying dispute – or the fact that the release of these lists at this time might have something to do with a power struggle.

The Las Vegas Sun also reported on the D.A.'s list, but the newspaper dug deeper and made clear that this was part of a power struggle.

And what do these lists actually tell us about how Clark County's child welfare agency functions? Absolutely nothing.

Indeed, precisely the same methodology could "prove" precisely the opposite point:

Were I given the file for every case handled by the Clark County Department of Family Services, I'm sure I'd have no problem coming up with 82 cases in which children were taken from safe, loving homes and thrown needlessly into the chaos of foster care. Since study after study has found abuse in one-quarter to one-third of foster homes - with an even worse record in group homes and institutions - I'm sure that, among those cases, I could find plenty in which the children never were abused until DFS took them away.

What would that prove? Also nothing - because I would have publicized only the cases that supported my point, and ignored the rest. And that, of course, is exactly what the D.A.'s office did.

The only way to know how DFS typically behaves is to look at a random sample of cases – not horror stories selected to prove a point. As it happens, such a case reading exists. It was done by one of the nation's leading child welfare scholars, Prof. Leroy Pelton, former director of the Social Work program at the University of Nevada – Las Vegas, and published in a leading peer-reviewed journal. In that representative random sample, Prof. Pelton found plenty of examples of needless removal of children from their homes in Clark County.

ARBITRARY, CAPRICIOUS, AND CRUEL

In fact, like much of the country, the child welfare system in Clark County, Nevada is arbitrary, capricious and cruel. Clark County does, indeed, leave some children in dangerous homes, even as it takes more children from homes that are safe or could be made safe if the families got the right kinds of help. What the D.A. doesn't get, or chooses to ignore, is that these two kinds of mistakes are directly related.
When caseworkers are inundated with false allegations, trivial cases, and children needlessly removed, they don't have time to investigate any case properly – so they make the kinds of mistakes the D.A. cites. But the solution is not to encourage even more needless removal, the solution is to do more to keep families together, giving workers time to find children in real danger. That's why the national leaders in child welfare are states that take proportionately far fewer children.

Nothing puts children in more danger than a foster-care panic – a huge, sudden surge in entries into care when workers are terrified of being on the front page, or in a politician's line of fire, if they leave a child home and something goes wrong. Over and over across the country, such panics have been followed by increases in deaths of children previously known to child welfare agencies. By encouraging such a panic, the D.A. is increasing the danger to the very children he wants to help.

Some of the best comments on all this actually came, by accident, from one of the very people pushing to keep the rogue child welfare agency in place, Assistant District Attorney Teresa Lowry. At one point, she told KLAS: "You don't want the pendulum to swing so far to either side."

Good point. But, as noted above, in Clark County it swung long ago to the extreme of massive needless removal of children – yet Lowry expresses no concern over this.

Lowry also says: "The question is, are the right children being removed" and then insisted that they are not.

But if the right children are not being removed, then there's only one way Nevada could take away children at a rate vastly above the national average: by taking away the wrong children.

So why isn't the D.A.'s office worried about that?

Three more foster care lawsuits doomed to fail, three more bad child welfare systems likely to get worse

MASSACHUSETTS AND NEVADA SUITS IGNORE WRONGFUL REMOVAL; THE NEXT TARGET IS ALMOST CERTAINLY TEXAS

The group that so arrogantly calls itself "Children's Rights" has filed another one of its Mclawsuits against a state child welfare agency – this time in Massachusetts. And NCCPR's sources say that another such Mclawsuit, in Texas, is imminent.

Meanwhile a group which is unaffiliated with CR but has the same myopic outlook about how to fix child welfare systems, the National Center for Youth Law, has filed the same kind of suit in Nevada. (I've come to think of the California-based NCYL as "CR West")

All of these child welfare systems almost certainly are every bit as bad as CR and NCYL say they are. But at best, these suits are likely to drag on for years, perhaps decades with no real improvement (witness CR's suits in Washington DC and Connecticut and NCYL's in Washington State). At worst, they will make these child welfare systems worse, by diverting scarce resources from prevention and family preservation into more child abuse investigations and foster care.

Neither CR nor NCYL has learned from successes elsewhere – including their own.

The only class-action lawsuit settlements that really work are those that push child welfare systems to rebuild by emphasizing family preservation; or at least include such efforts as part of the reform effort. The consent decree that helped transform child welfare in Alabama, brought by the Bazelon Center for Mental Health Law, is the classic example. (The Legal Director of the Bazelon Center is a member of NCCPR's Board of Directors.) But CR's own settlements in New Jersey and New York City also illustrate this, and so does NCYL's settlement in Utah. In all three cases, individuals and organizations wiser than CR or NCYL helped them craft settlements better than anything they could come up with on their own.

But it seems neither organization has learned either from their failures or their successes.

Judging by CR's press release, the Massachusetts suit zeros in on the problems of abuse in foster care and moving foster children from foster home to foster home – enormously important issues that are at the heart of NCCPR's own advocacy. But the key cause of those problems is the simple fact that children in Massachusetts are taken from their families at a rate nearly 50 percent above the national average. That creates an artificial "shortage" of foster homes, so workers wind up moving children from home to home. And it creates an incentive to ignore abuse in foster care.

But CR, of course, ignores this issue. Worse, their track record in places like Michigan and Georgia suggests they will press for settlements that will allow the states to divert funds now used for prevention, family preservation and help to impoverished families, into more child abuse investigations and more foster care. That, of course, will make everything worse.

The wrongful removal problem in Nevada is even worse than in Massachusetts, with a rate of removal 70 percent above the national average. A comprehensive review of a random sample of cases by one of the nation's leading experts, University of Nevada-Las Vegas Social Work Professor Leroy Pelton, found widespread wrongful removal and confusion of poverty with "neglect." But NCYL ignores the issue.

CONTINUING THE WAR AGAINST GRANDPARENTS…

And both organizations appear determined to extend the war on grandparents that CR is waging in Michigan – which already has caused the expulsion of hundreds of children from the homes of grandparents and other relatives in that state.

Massachusetts already is more restrictive than Michigan about placing children with relatives when their homes are unlicensed. It can be done only when a court approves. But apparently, CR thinks even this is not restrictive enough, since their Complaint complains about these exceptions.

NCYL's suit is even worse. Nevada law explicitly allows placing children in unlicensed homes as long as basic health and safety standards are met. (A great deal of formal licensing typically involves standards geared to middle-class creature comforts.) NCYL argues that the standards under the Nevada law are, in fact, too low. But instead of looking for sensible middle ground, NCYL offers up a horror story or two and appears to demand that every impoverished grandparent meet precisely the standards used to license the homes of middle-class strangers.

There is special irony in this in light of a key issue raised in the NCYL suit: the misuse and overuse of psychiatric medication on foster children. Florida is closely examining this issue and may be doing more than any other state finally to come to grips with it. Florida's data show that the best protection against overmedicating foster children is – grandma. Foster children in kinship placements are far less likely to be prescribed psychiatric meds than those placed in what should properly be called "stranger care."

It's not hard to figure out why: Grandparents and other relatives are more likely to love these children, and so will tolerate more difficult behavior before demanding a prescription.

So now we have the spectacle of the National Center for Youth Law simultaneously identifying an extremely important problem – and undermining the best solution.

And God only knows what kind of chaos CR has in store for Texas.

… AND RATCHETING UP THE WAR AGAINST FAMILIES

Entirely on its own, Texas already came up with the dumb idea of diverting funds from prevention and family preservation into more child abuse investigators and foster care workers. The legislature tried it in 2005, and it failed miserably – just as NCCPR predicted it would in a report we issued on Texas child welfare that year. Now the Texas child welfare agency is trying to reverse years of escalating entries into foster care. That may well be what made Texas a target for CR.

Indeed, a recent "Executive Director's Report" from CR's Marcia Lowry, indicates that CR is about to escalate its war against impoverished families caught up in the child welfare system. Instead of simply ignoring the problem, CR is now threatening to attack states that have succeeded in reducing entries into care. They've already pressured the Tennessee legislature into repealing a law that would have put one very small brake on such removals.

And CR is threatening to make its own determination of which prevention and family preservation programs "work" and which do not. In fact, there is abundant evidence already available on this; and CR is almost certain to get any such effort wrong.

Lowry likes to say that she doesn't know how to fix poverty, but she knows how to fix foster care. In fact, the results of her lawsuits suggest she doesn't know how to fix either one – and her efforts sometimes make the poverty worse.

No one can stop CR from suing Texas of course. We can only urge that state, and Massachusetts and Nevada as well, to fight any proposed settlement that is not built around doing more, not less, and spending more, not less, to keep families together.

Perhaps then Texas won't be the latest state to see its children wronged by "Children's Rights."