The shame of HBO’s “Foster”

The foster parent is a saint!  The caseworkers are heroes!  The birth parents are scum! (Unless they repent in which case they are merely sick.)  And none of that is even the worst thing about this documentary.

 

This is a stock photo. This child is not the subject of a documentary
about foster care. If he were, no one would show his face.
Or would they?

In its promotional material for the “documentary” Foster, (and no, I’m not going to link to it) HBO declares that it “upend[s] some of the most enduring myths about foster care, going beyond the stereotypes.”

On the contrary. Foster enshrines enduring myths and stereotypes. Foster is the system the way the system wants to be seen – noble foster parents and heroic caseworkers rescuing innocent children from parents who are usually the scum of the earth but occasionally – if they repent – merely sick.  And all that isn’t even the worst part.

Foster mimics one of the biggest failures of the system itself.  Foster care, the system, is built to help the helpers – to make the helpers feel good, even at the expense of the children.  Foster, the documentary, does exactly the same thing. That’s why it’s going to be enormously popular among middle class professionals in the system, and that’s why none of them is likely to notice the documentary’s single greatest flaw; a failure not of filmmaking but of ethics.

Wrong from the start

 Foster gets it wrong literally from the opening moments.  It begins with the claim that one in eight American children will suffer a “confirmed” case of abuse or neglect by age 18.  That’s not true.

“Confirmed” is a made-up term, used by those wedded to a take-the-child-and-run approach to child welfare, to mischaracterize cases. The actual terms “indicated” or “substantiated” can mean only that a caseworker guessed that it is slightly more likely than not that some kind of abuse or neglect occurred.  And, at no point does Foster even hint that there is a vast difference between the horrors described by some of the children in the “documentary” and typical cases; cases that often involve the confusion of family poverty with “neglect.”

It’s all downhill from there.

 A real-life “Aunt Ti.”

First we meet the foster mother who is essentially the star of the program. She deserves to be. There is no reason to doubt the portrayal of this foster parent as someone who has been, sometimes literally, a lifesaver for the children in her care.

She is a woman possessed of such boundless patience, genuine love, and enthusiasm that by the end of the program you’ll probably wish your parents had been accused of child abuse just so you could have the chance to go live with her.  The only other foster parent who comes close is “Aunt Ti” – and she exists only in a Twilight Zone episode written by the creator of The Waltons.

But such foster parents are no more typical than the ones on the other extreme – the ones who abuse the children entrusted to their care.

But this isn’t the worst of it.

Equally unrepresentative are the current and former foster children - at least in terms of what brought them into foster care. We hear only from foster children whose parents range from inexcusably neglectful to unspeakably cruel, often raining down physical and verbal abuse.  Again, there is no reason to doubt their accounts. But the parents they describe are not typical of the parents who lose children to the system.

Put Foster’s atypical portrayals of birth parents and foster parents together and viewers are left wondering why we don’t rush in and “rescue” far more children from horrible parents, since what could be better for them than a real-life Aunt Ti?

But this isn’t the worst of it either.

The only good parent is a redeemed parent

But wait, I can hear the producers saying: What about the parents we did show? – we didn’t portray them as evil.

True, but in the world of Foster, if birth parents aren’t evil they have to be sick! Sick! Sick!  And they must be guided by noble caseworkers into realizing the error of their ways and repenting!  Then and only then do they “deserve” to have their children back. 

Indeed, a guidebook for “watch parties” explicitly calls on discussion leaders to push a “public   There is nothing in Foster to indicate that what’s really needed is a social justice approach – something that’s been shown effective in study after study.

health” approach to child welfare.

But in Foster the only good parent is a parent who has been properly cured – and redeemed.  So this is what we see:

A mother uses drugs while pregnant. The infant tests positive for cocaine.  Mom lies about it – to avoid having the child taken away. Dad has no idea Mom was doing drugs.  The family is reunited but only after scene after scene in which Mom confesses to how horrible she’s been, and both parents express undying gratitude to the caseworkers and thank them profusely.  (They’re going to love screening this at social work schools!)

In fact, there probably is no reason this infant couldn’t have been left with this loving couple in which the mother made a mistake.  It’s likely that all they needed was concrete help and, possibly, drug treatment for the mother.  Or the infant could have been placed in the sole custody of the father – which is what happened eventually, but only after the child was placed in foster care and the parents bowed and scraped enough to persuade the system they were worthy.

Foster, however, offers no hint that there was any alternative to removal. The explanation from the caseworker is taken at face value. And only inadvertently do we see how the system actually put stress on the family that may have driven the parents apart.

At one point an “investigator” visiting the father suspects that the infant may have had a seizure.  And that, in turn, might be because of Mom’s drug use.  It is only much later in the documentary that those viewers still around learn that there is no medical evidence that there was a seizure (though it’s still assumed to have happened) and no evidence that cocaine use caused the alleged seizure – if there was a seizure.

But by then Dad has become furious at Mom.  At a counseling session (of course), with the mother in the room, he says: “I was pissed off that she did something and it’s going to reflect on my daughter.  Why the hell did you choose to use that fu----g drug!”  To which the counselor replies “It’s great you were able to get that off your chest … [but] you have to forgive her.”

At the end of the program, it’s revealed that the couple has separated.

Reinforcing stereotypes about “drug babies.”

This family isn’t the only one harmed in ways the producers can’t seem to see.

As The New York Times explains, one of the most important lessons of the “crack baby” scare of the 1980s is that not only were the claims about the effects of prenatal substance abuse grossly overblown, often it was the very stigma inflicted on the children by the system that caused the harm.

In Foster we meet an 18-year-old who is one of the few foster youth to make it into college, where she is struggling.  She beat enormous odds, both because she was one of those treated horribly by her own mother, and because she was moved to so many homes she can’t even remember them all. Anyone who can come so far in spite of so much is a lot of things, such as resilient, determined and courageous.  She sure isn’t “dumb.”

But she thinks she is.  And she thinks she knows why.  Twice she says it’s because “I was a drug baby.”

Apparently, no one ever told her otherwise.  And now, a documentary will reinforce that belief – for her, and for viewers.

But even this isn’t the worst thing about Foster. 

A massive invasion of privacy

The worst is its massive invasion of children’s privacy.

HBO brags about how the producers of Foster got “unprecedented access.”  That is true. And it’s a travesty.

The most intimate details of a 16-year-old’s life – and his crimes (he’s already part of the juvenile justice system) -- are discussed on camera in meetings and at televised court hearings.  What is apparently his real first name – an unusual name – is used throughout and he is seen on camera.

Much younger children also are seen, being interviewed and interacting with their foster mother.  An autistic eight-year-old is seen breaking down and having a tantrum for fear of getting onto a school bus.  Now, all of these moments will live on forever.

All because a child protective services agency – the Los Angeles County Department of Children and Family Services (DCFS) - and a bunch of other players in the system, traded these children’s privacy for some good p.r.

I’m sure it was all legal.  I’m sure all the proper forms and releases were signed.  But here’s the problem: no one – no one – who has the legal authority to sign away the privacy of foster children by putting their faces on camera and using their real first names has the moral right to do it. 

That’s because the moral right to decide whether the benefits of such exposure outweigh the risks rests only with those who love the children whose privacy is at risk.  Agencies do not love children.  (It’s the same issue that arises when child welfare agencies allow foster children to be used for clinical drug trials. Yes, that does happen.)

These children’s own parents can’t give truly informed consent for the simple reason that they’re inherently under duress.  They may fear that if they don’t sign the form they might never see the children again.

If the children of the foster mother actually were adopted before they were put on camera, then their adoptive mother had the right to make the decision.  But except for one of the children, whose status is seen changing to guardianship (at an on camera court hearing) they are all portrayed as foster children.  It that is accurate than the foster mother, however well intentioned, lacked the moral right to sign those forms.

Mind-boggling hypocrisy

Even more mind-boggling is the hypocrisy.  NCCPR favors open court hearings in child welfare cases.  But whenever there is an attempt to open court hearings in a new state or locality, it’s almost always the child welfare agency, or assorted other parts of the system, that scream and yell about how this should not be done because those sleazy journalists can’t be trusted to keep children’s identities a secret. 

But journalists have an outstanding record of voluntarily withholding children’s names and other identifying information.  That’s one reason why at least 40 percent of foster children now live in communities where court hearings are open, in many cases they’ve been open for decades with no problems.

Los Angeles County, however, is not one of them.  In fact, when it was tried, an appellate court stopped it. One of the groups that objected said that opening the hearings “put the needs and interests of the public and the media ahead of the victims of child abuse and neglect.”

Yet in Foster, that same group, and others who had opposed open courts in Los Angeles, are enthusiastic participants.  Various professionals are seen – sometimes along with their young clients – on camera, in meetings discussing the most intimate aspects of the lives of children we have gotten to know by face and first name, in therapy sessions, and in court hearings that have not only been opened, but opened to cameras.

The benefits of leaving L.A.

It’s hard to blame the producers for all this. They, too, almost certainly had the best of intentions. But they made one crucial mistake: They never left Los Angeles.  They tapped into the master narrative that has dominated Los Angeles child welfare, and coverage of Los Angeles child welfare, for decades.  Those thanked in the closing credits include some of the very people and groups responsible for getting child welfare wrong all the way back to the McMartin Preschool hysteria. 

And there’s no effective counter-narrative in Los Angeles – in particular no well-organized, passionate community of family defense attorneys.

Had the producers decided to do their documentary about foster care in New York City, odds are they would have told a very different, and much more complete, story.

News and commentary round-up, week ending April 15, 2019

For a long time, I’ve been sending a weekly round-up of news and commentary making the case for family preservation to advocates across the country.  Beginning this week, I’m posting the round-up here for everyone to see.

● Dorothy Roberts, professor of law, sociology and civil rights at the University of Pennsylvania (and a member of NCCPR’s Board of Directors) has an article in Harvard Law Review examining the dangers of predictive analytics in child welfare and criminal justice.  The article reviews Prof. Virginia Eubanks’ book, Automating Inequality.  “In this Review,” Prof. Roberts writes, “I expand Eubanks’s focus on state welfare programs to include a broader range of systems, with particular attention to the criminal justice system, and Eubanks’s focus on poverty management to include white supremacy.” Read the article here.

● The Chronicle of Social Change looks at the work of Prof. Martin Guggenheim, co-director of the New York University School of Law Family Defense Clinic, the father of the family defense movement (and the President of NCCPR).

● Last week on this Blog I discussed an appalling case in Arizona. A lot of the excellent reporting on the case was made possible by the fact that the initial court hearing in the case was open to the press and the public.  Now, a different judge has kicked the reporter out. Here’s her follow-up story.

● Gothamist reports on a New York City Council hearing at which the city’s Administration for Children’s Services came under fire for harassing families when parents smoke marijuana.  (Poor families, that is. Affluent parents can even brag about smoking pot without fear of reprisal from child protective services.)

● In the Chronicle of Social Change Vivek Sankaran has a column called “While We Celebrate [adoptions] Some Children Grieve.” He writes: “…[B]efore courts take the dramatic step of permanently ending a child’s relationship with their birth family, they should ensure that the decision makes sense for the specific child before them. At a minimum, this must include hearing the child’s voice, and considering other alternatives that might give the child a permanent home while also preserving important relationships.”

● And finally, a rerun of sorts.  The Pulitzer Prize for editorial writing was awarded to Brent Staples of The New York Times for a body of work that included this editorial condemning what can best be called “crack baby” journalism.  Unfortunately, at almost exactly the same moment that brilliant editorial was published, the Orange County Register was reviving this discredited genre, something I discussed in WitnessLA  Perhaps the Pulitzer will help drive home the message to the Register and others.

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.

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.”

Foster care in Los Angeles: The courts stay open – for now

UPDATE: WitnessLA has a good take on the appeals court decision here.


            An appeals court has refused to close Los Angeles County courts hearing cases alleging child abuse and neglect just days after they were opened by Presiding Juvenile Court Judge Michael Nash, according to the Los Angeles Times.  At the same time, one of the best recent essays in support of keeping these hearings open appears today in Pasadena Weekly.

            Although the ruling was only two sentences, the reasoning is important: The groups that tried to close the courts again have the contracts to provide representation for children and parents.  The appeals court ruled that they have no “standing” to challenge the ruling because open courts don’t do the lawyers any harm.  (Actually, one could argue that open courts do these lawyers a lot of harm because they reveal the pathetic excuse for “representation” that they provide – but that’s not an argument they’re likely to make on appeal.)

            In any event, the appeals court ruled that open courts can’t be challenged until that challenge is brought by someone who actually claims to have been harmed by open courts.  Given that the record all over the country has been that the fears of such harm have proven groundless, that’s likely to be a very high bar.

            Of course it’s impossible to guarantee that no child ever will be harmed by an open court hearing.  But we know that thousands of children are harmed every day when the hearings are closed – sometimes the harm even can be fatal, if a bad decision leads to the death of a child.  So, as I’ve noted before, while it’s impossible to guarantee that no child ever will be embarrassed by open courts, the odds are if courts are open the quality of everyone’s work will improve – and more children will live long enough to blush.

Foster care in Los Angeles: Opening courts in L.A. already is proving its value.

A story in today’s Los Angeles Times aptly illustrates the benefits of opening court hearings to the public in cases of alleged child abuse and neglect.  It also illustrates the one drawback – which has nothing to do with privacy.

The story appears even as the organization for lawyers who supposedly represent children in these cases is appealing the decision by Presiding Juvenile Court Judge Michael Nash to open these hearings to the press and, under some circumstances, the public.  According to the Times, the organization for lawyers supposedly representing parents plans to join the suit.

The real reason for the appeal also was illustrated in today’s story.

The story was the one that almost always appears when courts first are opened: reporters rush in to see what really goes on, and give readers their first glimpse of this reality.

The Times sent two reporters, Garrett Therolf and John Hoeffel.  Their story led with a case from the court of Judge D. Zeke Zeidler, in which a severely-abused child was not getting the help he needed.   Specifically, the caseworker from the Los Angeles County Department of Children and Family Services hadn’t done nearly enough to find a permanent home for the child.  According to the story:

When the caseworker described her limited efforts to comply with the order, the jurist delivered a stern rebuke.

"You as the government have chosen to become vested with this child" by removing him from his home, Zeidler said. "But the court does not find that the department has provided sufficient services."

The story concludes this way:

After Zeidler's hearing, the interim director of the county's child welfare agency said he would look into the judge's complaint about efforts to find the injured boy a permanent home. "I am always concerned when I hear that a judge is not satisfied with the efforts of a social worker," Philip Browning said.

Presumably, Browning wasn’t sitting in that particular courtroom at that moment.  Presumably, he was notified of the judge’s displeasure by a reporter.

So opening courts already has made a difference:

● Because a reporter was present this time, he could let the acting director of DCFS know that there will be a public price to pay if the child doesn’t get the help he needs.  Odds are the child now will get that help.

● Next time, knowing that a reporter might be present, the caseworker is likely to do a better job of finding the right placement for a child, or whatever else is required of the worker.

● The privacy of the child was protected – no names were used. 

SOME LAWYERS ARE EASILY “FREAKED OUT”

But there was more:

We got a first glimpse of what passes for legal representation in this court.  One judge was so clueless about how to handle open courts and the repeated objections filed by lawyers wanting their hearings closed that the whole process ground to a halt.  But Judge Zeidler handled everything with aplomb.

Even more revealing:

It wasn’t just the lawyers supposedly representing children who were objecting.  So were the lawyers who supposedly represent parents – even though the Los Angeles grassroots group advocating for families whose children have been taken, DCFS-Give Us Back Our Children – has been outspoken in its support for open courts.

Worse, some of the parents’ lawyers objecting to open hearings didn’t bother to check with their clients first.  Why?  According to their boss, they were just too “freaked out” by the thought of the general public finding out what they do and how they do it.  According to the Times:

"I think everyone is freaked out because this has only been in effect a couple of days," said Kenneth Krekorian, executive director of the law firm representing parents. "This is a big change for how things have historically happened."

Krekorian acknowledged that some lawyers were objecting to media presence without checking with their clients. He said he had advised his attorneys to consult with their clients before acting.

"How can you object without any direction from your client?" Zeidler asked one attorney. "Maybe he's a parent who doesn't feel he is getting adequate services, or maybe he feels his due process rights are being trampled and wants someone to know."

What does it tell you about the general quality of family representation in Los Angeles County that the chief lawyer actually had to explain to his staff that it’s generally a good idea to ask their clients what they want before purporting to speak to them – and still, they didn’t always do it?

THEY DIDN’T FREAK OUT IN NEW YORK

By the way, I’ve seen no news account from any other state that has opened these courts in which the attorneys were similarly “freaked.”  On the contrary, it was no problem in places like Minnesota and New York City, and it’s still no problem.  In fact, all over the country, no state that has opened these hearings has closed them again, and one-time opponents have become converts.  Yet the groups now suing or preparing to sue to close courts in Los Angeles apparently never consulted with their New York counterparts – or simply didn’t care about the reality of open courts.

There is a possible explanation for this:

This isn’t the first indication that the lawyers representing children in Los Angeles know that the public would be upset if it knew exactly what constitutes “representation” at these hearings. As attorney Edward Opton pointed out in a letter to judge Nash, the description of what they do and how they do it, in the memo sent to the judge by the children’s lawyers opposing his order is, in itself, remarkably damning.

All this suggests the real reason why the lawyers for children (and reportedly, soon, the lawyers for parents) are trying to close the courts again.  They don’t want people to see the quality of their work.  In particular, I suspect they fear a repeat of what happened in Santa Clara County. 

After the San Jose Mercury News won rare, temporary access to courts in Santa Clara County as part of a year-long investigation by reporter Karen De Sa, the newspaper’s series on the abysmal quality of representation forced the provider of defense counsel for families to completely reorganize and operate under the equivalent of what child welfare agencies might describe as a “corrective action plan.”  (The firm came within an inch of being replaced entirely, an outcome many advocates would have preferred.)

THE ONE DRAWBACK TO OPEN COURTS

As I said at the outset, the Times story also reveals the one real drawback to opening courts: A biased reporter will filter everything through his biases.

So, with all the cases to choose from, the story in which Garrett Therolf is the lead author of course begins with one of the very rare cases in which a child was brutally abused, instead of one of the many more typical cases, often involving children who never needed to be taken from their homes.

We knew this would happen and supported opening courts in Los Angeles anyway, on the theory that the solution to the problems of journalism is more journalism and, ultimately, better reporters would set the record straight.

But Therolf’s bias also came through when he completely shut out of his story a group opposing open courts that does not have a vested interest, and therefore is the most credible.

Members of the California Youth Connection, a group made up of current and former foster youth, are terrified of the most intimate details of their lives becoming public.  Their opposition killed legislation to open these hearings statewide.

So 19-year-old Lucias Bouge, who had been through at least 40 separate placements in the six years after his grandmother died, told a reporter about how at school, he never told anyone he did not live with his parents – and how we would not have wanted classmates to find out because of a public court hearing.

The fact that what CYC fears simply has not happened in state after state where these hearings are open has not been enough to overcome that fear.   The fact that the Times used no names in the one case it describes in detail today probably won’t allay those fears either.  No wonder.  If there is one group that has good reason not to trust anything told them by an adult it is current and former foster youth.

But the fact is, if Bouge gets his wish and the courts are closed again, all he will accomplish is to make it more likely that more children among the next generation of foster youth will have to endure exactly what he did.

I wish CYC had examined other states before giving in to its fears, something discussed in detail in these posts to this Blog.  But the fact that I, and Garrett Therolf, disagree with CYC is no reason to shut them out of the story.

We know about Bouge’s concerns because Hoeffel wrote about them for the Times’ LA Now Blog.  Similarly, last year, when CYC came out against opening courts statewide, it was almost certainly disappointing to Karen De Sa at the Mercury News.  But she gave their side of the story a full and fair airing, and the Mercury News put it on the front page.

But in the Los Angeles Times story that made the print edition today, with Therolf as the lead author, CYC was shut out.

I think Louis Bouge is wrong.  But Los Angeles Times readers, even those who read the paper the old-fashioned way, in print, had a right to “hear” Bouge and decide for themselves.  Garrett Therolf denied them that right – just as he has denied them the right to hear from the families needlessly torn apart by DCFS.

Open courts will give better reporters a chance to tell the whole story. 

UPDATE: LA child welfare hearings are open NOW

UPDATE, FEB. 2: I discussed the opening of these hearings on KPFK Radio this morning.  The audio is available here.


Court hearings in cases alleging child abuse or neglect in Los Angeles County are now presumed open to the media.

Presiding Juvenile Court Judge Michael Nash issued his final order last night.  It’s effective immediately.

Journalists will be allowed in unless a party to the case can persuade the judge that this would be “harmful to the child’s or children’s best interests.”

Members of the public will be admitted as well, if they can show “a direct or legitimate interest in the case or the work of the court” and their presence would not be “harmful to the child’s or children’s best interests.”

This marks a significant victory for all of us in child welfare who want to see courts and child welfare agencies made more accountable.  It will be that much harder for the county Department of Children and Families, private foster care agencies, and the courts themselves to cover up their mistakes.  

Open hearings are not a panacea.  But they have led to modest systemic improvements, and often big improvements in the outcome of individual cases.  And none of the fears of opponents has come to pass. Full details are in our  Due Process Agenda.

The former chief judge of New York State’s highest court, the Court of Appeals, and the judge who opened these hearings in New York State, Judith Kaye put it best:

“Sunshine is good for children.”

As noted in the previous post to this Blog, with this change, nearly half of America's foster children live in jurisdictions where court hearings are presumed open, as least to media.

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.