Child welfare in Los Angeles: Children still suffer when parents “flunk the attitude test” – but the suffering no longer is secret

More than two decades ago, when I was writing Wounded Innocents, my book about the American child welfare system, a lawyer in Los Angeles told me about “the attitude test” – and how it can lead to every kind of child welfare tragedy.

It works this way:

Parents who really are guilty, even of serious maltreatment, sometimes can get away with it if they are “system-wise” and know how to put on a good act for a caseworker.  The parent who says “Oh, I am so very, very sorry.  I know I need help.  Please bestow upon me your ‘counseling’ and your ‘parent education’” may get her child returned over and over again, no matter how serious the abuse.  The parent who says “I’m innocent, damn it!” because she is, in fact, innocent, may lose her child forever. 

The attitude test is alive and well in Los Angeles (and everywhere else in America) but given how reporters tend to stereotype families, they often refuse to believe it – unless, of course, they see it for themselves.  Certainly, it’s unlikely that Garrett Therolf of the Los Angeles Times would ever have believed it, had he not seen it for himself.

He could see it because in February, Presiding Juvenile Court Judge Michael Nash, opened hearings in what is called “dependency court” to the media and, sometimes, to the public.

So Therolf saw a classic example of vindictive caseworkers punishing children because their mother “flunked the attitude test,” and he wrote a very good story about it.  (See also this excellent summary and analysis of the story from WitnessLA.)  And be sure to read to the end: The final paragraphs perfectly sum up American child welfare.

In the story, Marlene Furth, who works for the contractor that provides defense counsel for these families, did a very good job of putting the case into context. 

[Furth] called it an "outrageous case" of retaliation that she sees too often. It is "not a daily occurrence, but it is also not highly unusual," she said in an interview.

"The problem that exists," she said, "is that there are very very many dedicated workers and they work extraordinarily hard to reunify families, and then there are many workers who don't - either because they are burned out, overworked or reached a point where they don't care."

But, of course, had Furth's firm had gotten its way, we’d never know about this case.  That’s because her firm, contrary to the interests and desires of many of its clients, has been fighting against keeping these court hearings open – in part, I believe, because it would expose the poor quality of representation families often receive.

Child welfare in Los Angeles: The lawyer who didn’t know his own client (and other things we know only because L.A. courts now are open)

            Granted, a hearing in a child welfare case can include a lot of people.  There may be a lawyer for each parent as well as the children and, of course the child welfare agency.  The entire family may be present, along with witnesses.  That’s just for one case, and these courts hear a lot of cases.

            Still, you would think that Kyle Puro, a court-appointed lawyer for indigent parents would have recognized the guy sitting right next to him in Los Angeles County dependency court recently.

            It was his client.

            Puro was “representing” the father of a 15-year-old boy.  Apparently, he’d either never met the man or spoke to him so briefly whenever they did meet that it didn’t make much of an impression. Yet now, Puro was supposed to stand there and make the strongest possible case for his client – whoever the guy is.

            The referee (sort of a not-quite-judge in these kinds of cases) Robert Stevenson, was not pleased.  He became even less pleased when he found out that Puro didn’t have his file for the case with him either.  “You’ve got to pull it together,” Stevenson told Puro, before ordering Puro to join him in another room for a private chat.

            We know about Kyle Puro’s apparent lack of preparation thanks to Ben Baeder, a reporter for a chain of newspapers in suburban Los Angeles, including the Pasadena Star News.  He’s written the best eyewitness account yet, in the month since such accounts became possible.

Until just over a month ago, most people in Los Angeles would have had no way of knowing about appalling lapses like this.  It all would have taken place behind closed doors.  But then Presiding Juvenile Court Judge Michael Nash, who is at least as fed up with this kind of sloppiness as Stevenson, ordered those doors opened.  Now hearings are presumed open to the press.  Members of the public have to meet a higher bar for entry, but they stand a better chance of getting in than in the past.

            Notwithstanding the fact that parents in these cases often are among those most anxious to have these hearings open, Kyle Puro’s bosses are trying to get Judge Nash’s order overturned and shut the public out again.  No wonder.  Imagine the public seeing the wretched performance of their attorneys day after day.  People might even wonder if Los Angeles Dependency Lawyers, Inc. (LADL), a consortium of private law firms, located one next to the other on the fourth floor of the same building, really ought to have this contract at all.

            Something similar happened in New York City.  In part because of news accounts after these courts were opened there, the system for assigning counsel to indigent parents was completely revamped – and vastly improved.  Santa Clara County also saw changes after judges there let Karen De Sa of the San Jose Mercury News see what really goes on.

            But in Los Angeles, Puro’s boss, Marlene Furth, was busy blaming the presence of a reporter for Puro’s apparent memory lapse:

            "There was just this level of tension," she said of a reporter being in the courtroom. "Everyone is like, `The press is watching. The press is watching."'

            In fact, the blunder may not have been entirely Puro’s fault.  If his caseload was typical, in addition to representing the father he didn’t even recognize, Puro was representing parents in 199 other cases.  Furth told reporter Baeder that

"The one thing [the lawyers] say, the one thing, is that they don't have time to talk with their clients," she said.  There isn't really time to have a case-by-case review of whether the press should be in the courtroom, attorneys said.

            Of course, if you don’t have time to talk to your client, there is no time for a case-by-case review about anything – and no way you can possibly provide decent representation.  So legal representation for indigent parents becomes little more than a sham.

            There also are questions about whether high caseloads are necessary for the firms that make up LADL to stay in business.

            The story doesn’t say how much money the firms are paid, but the law firm supposedly representing the children (where the attorneys juggle caseloads of “only” 150)   get $680 per case.  No, not $680 per hour, or even $680 per day - $680 per case.  If that’s what Los Angeles is paying the firm that represents the children, it’s hard to imagine that, politically, there is any way the firms representing parents are doing any better.

            Thanks to open courts, and Baeder’s story, we learned about some odd behavior by at least one lawyer representing children as well:

One attorney representing a 2-year-old child recommended the county launch an investigation into the child's former foster parents because the foster parents had taught the child a few words in sign language. The attorney alleged it inhibited the child's verbal speech, but an investigation was never launched.

The child's birth parents defended the former foster parents. "They did a great job," said the [child’s] father of the former foster parents.

It was a happy day for him and the child's mother. They had officially regained custody of their daughter and were no longer under court supervision.

            So, thanks to open courts, readers learned that birth parents and foster parents aren’t always adversaries – they can work together to help a child, as long as the child’s “law guardian” doesn’t come along and throw a monkey wrench into the works.

            Needless to say, the firm that has the contract to represent children’s attorneys also is trying to get Judge Nash’s ruling overturned.

            But in the meantime, the quality of representation just might get just a little better.  Because, as Marlene Furth would say: “The press is watching. The press is watching.”

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.