Covering foster care and family preservation: The Los Angeles Times gets a second chance

The Los Angeles Times is the only newspaper I know of where the reporter who once had the child welfare beat now has the media beat.

James Rainey is a good, conscientious reporter. Like most reporters who have ever covered child welfare, he wanted to leave the system better than he found it. And like most such reporters, he didn't. With child welfare back in the news in Los Angeles, he used his column Friday to ask why. But he missed the real answers. Some of those answers have to do with what he wrote when he had the child welfare beat – and how he wrote it.

Rainey begins his column by recalling his stories about Lance Helms, who was beaten to death in 1995 after being returned to "his violent, drug-plagued father." The case set off a media and political firestorm. Writes Rainey:

Little I've written in nearly 30 years of newspapering has generated as much response as that 1995 story. A picture of the adorable, sandy-haired toddler appeared on Page 1, along with the description of how he'd been hit so hard his internal organs burst. The phone calls and mail arrived in waves. Eventually, the state Legislature passed reforms. It all seemed so important then. It all seems so inadequate now.
But Rainey leaves something out. The Lance Helms case also set off a huge foster-care panic in Los Angeles County, with disastrous consequences. Who says so? Andrew Bridge, a former foster child, author of the searing memoir Hope's Boy, (Hyperion: 2008) and founder and first director of the Alliance for Children's Rights – a group Rainey praises in his column.

Here's what Bridge wrote about the Helms case two years ago, in an op ed column for The New York Times:

"…officials in Los Angeles redoubled training, took over individual cases and hired frontline workers, then descended on communities to root out failing families. The system bloated to 70,000 children under the county's supervision. Officials soon discovered that taking children was easier than returning them. As a result, thousands of children languished in foster care for years."

(The column was written in a noble, but, unfortunately, unsuccessful effort to persuade New York City officials not to make the same mistakes.)

Rainey goes on to say that "I like to think I got to some of [the] deeper issues as I wrote about foster care over the next couple of years." To some extent, he did, including excellent reporting on abuses in group homes.

But his coverage was marked by a general disdain for birth families, generally reflected in sins of omission. Among all the James Rainey stories in NCCPR's database, which goes back to 1997, I can't find even one that focused on the impoverished birth parents caught up in typical cases, or even an interview with, say, a lawyer who regularly represents such parents. The written record suggests that for James Rainey, as for so many other reporters on the child welfare beat, birth parents were, almost literally, too sub-human to talk to. And it's easy to write off people you've never met as, in Rainey's words, "incompetent" and "deadbeats."

Even grandparents tended to turn up only as people too suspect to be allowed to adopt their own grandchildren.

And that helps explain Rainey's last big L.A. child welfare story in 2000, a particularly damaging story I'll discuss in a moment.

Family preservation gets "swiftboated"

Rainey certainly was not alone. Birth-parent bashing reached its height from about 1993 to 2001.

Those who believe the answer to every child welfare problem can be boiled down to "take the child and run" masterfully exploited tragedies like the Helms case in Los Angeles and Joseph Wallace in Chicago to spread two Big Lies about child welfare: that family preservation made children less safe and, in a truly Orwellian twist, that family preservation, a movement created to keep children out of foster care, was prolonging foster care as agencies supposedly lavished services on rotten parents, supposedly giving them chance after chance to "clean up their acts."

In fact, for the overwhelming majority of children, family preservation is safer than foster care. The overwhelming majority of parents are nothing like Lance Helms' father; many have "acts" that need no cleansing at all. And children languished in foster care then for the same reason they languish in foster care now: not because agencies are lavishing help on families, but because they give little or no real help to families. The children are filed away in foster care and forgotten as overwhelmed workers rush on to the next case. (For details about these myths and how they compare with reality see our Child Welfare Timeline.)

During the 1990s, family preservation was "swiftboated" – and, at the time, the family preservation movement reacted with all the speed and skill of the 2004 John Kerry campaign. One of the reasons NCCPR exists is to try to make sure that never happens again.

Journalists celebrate a bad law

The smears culminated in the passage of the so-called Adoption and Safe Families Act of 1997 (ASFA). The real impact of ASFA in most of the country was to increase the number of children torn from their parents and to create a generation of legal orphans with no ties to birth parents and little chance of adoption either, as terminations of parental rights far outpaced the actual increase in adoptions.

But in the early years after passage, ASFA and similar state laws were greeted with jubilation by many journalists.

Reporters waxed rhapsodic over ASFA and its state counterparts – California's is the most draconian. At last, the journalists insisted, children would be freed from those sadists, brutes, and incompetents and they'd all live happily-ever-after in adoptive homes! The journalists almost seemed to wish a pox on deadbeat parents who wouldn't be getting any more of those undeserved "chances."

Rainey's story, published May 8, 2000, was typical. Here's the lead:

Adoptions of foster children have jumped nearly 50% in California over two years, mirroring a national trend in which states are moving more rapidly to find permanent new homes for the offspring of the most troubled parents.

The speedup creates stable homes for thousands of children who had been trapped in abusive and neglectful families, experts said. It also should cut taxpayer costs by reducing the number of social workers, lawyers and judges needed to track children on California's foster care rolls, the nation's largest. …

"I think there's a substantial and even a cultural change within child welfare," said Jorja Prover, a professor of social welfare at UCLA who trains Los Angeles County social workers. "Instead of keeping kids languishing in foster care and fighting this sometimes losing battle of family reunification, people are thinking in terms of finding permanent homes." …

Having accepted as fact the myth that all children whose parents are taken from them forever were abused and neglected, the story goes on to accept as fact the myth about lavishing help on birth families:

"Some agencies used to be content to work with a [troubled] birth family for two or three or four years, before they would finally throw in the towel" and place a child for adoption, said Rich Hemstreet, chief of the Adoptions Policy Bureau for the state Department of Social Services …

And the myth that adoption is the all-purpose answer:

The public face of child welfare adoptions is a joyous one. On occasional weekend "adoption days" at the Edmund G. Edelman Children's Court in Monterey Park, hundreds of groomed and coiffed young people are joined to new families in ebullient festivities. Social workers, lawyers and judges celebrate the occasions as a respite from the court's often grim work of protecting children from their own parents.
Needless to say, this celebration of adoption-as-panacea contained no mention of legal orphans, or of adoption disruption, when children are rushed into quick-and-dirty, slipshod placements and the adoptive parents change their minds. The story simply assumed that, in the words of the director of the California Department of Social Services at the time "every one of those kids has a permanent home."

To the extent that the new laws caused "some pain," the story said, it was only to those incompetent parents. There was no mention of all the children who never should have been caught up in the termination madness in the first place. In California, that was left to Metroactive, the alternative weekly in San Jose, two months later.

No dissent allowed

Rainey's story went on that way for 1,495 words. And not one of those words was a word of dissent. He spoke to no birth parents, no lawyers who represented them in court, no civil rights groups who might have talked about what ASFA was doing to minority communities, no anti-poverty groups who might have spoken of the confusion of poverty with neglect.

But now, even as James Rainey of the L.A. Times media beat is lamenting the fact that things don't seem to have changed, none of those ideas is on his list of suggestions for his successors.

Instead, he writes of "an army of incompetent parents overwhelming a small rank of protectors." Even when he now says families should get lots of services, raising the possibility he may be reconsidering his former view, he still stigmatizes the parents.

"What hasn't changed since I left the child welfare beat?" Rainey wrote in his column Friday. His first answer:

The need to provide as many services as possible -- drug rehab, parenting classes, day care and the like -- to troubled families to help them keep children at home. It's tempting to want to wish a pox on deadbeat parents, but evidence shows it's cheaper, and works better, to give them a hand. The alternative often is the long-term costs and abysmal outcomes that come with foster homes and, often, the probation camps and prisons that follow."

Apparently, they weren't lavishing all that help on families a decade ago after all. But even as Rainey suggests services would be a good idea, the stereotype – the view of all birth parents as incompetents or deadbeats - something less than human - remains.

The column continues:

Trish Ploehn, director of the family services department, tells me an arrangement with federal officials has allowed more money to be spent on such services.

Actually, the biggest underreported child welfare story in Los Angeles may be the fact that this arrangement – a waiver from federal funding rules - freed up far less money than it should have. While Florida is beginning to transform its once abysmal system using the same kind of waiver, L.A. is making far less progress and squandering a similar opportunity.

Rainey continues:

The 14 kids in the system who died of abuse or neglect last year was higher than any of us should accept. But when the county was pulling many more children from homes a decade ago, foster care deaths peaked at 20 in one year.

But back when Rainey was writing about the joys of taking more children and rushing to termination of parental rights, we already knew that this approach does not reduce child abuse deaths. Abundant data were available from Illinois, which had gone through one of the nation's worst foster-care panics from 1993 through 1998 – and saw child abuse fatalities increase. In addition, using more reliable measures of safety than fatalities, Los Angeles County does better than other California counties which take, proportionately, even more children.

In fact, there has been some progress in making children safer since Rainey left the child welfare beat. But Los Angeles is regressing. Though the rate of removal is not as bad as when it was at its worst, it bottomed out in 2003 and has increased almost every year since. And Los Angeles takes away children at a much higher rate than many other big cities – most notably metropolitan Chicago, where the state reversed course after the panic, and independent court monitors say a decade-long emphasis on family preservation has improved child safety. (For details see our briefing material on Los Angeles County child welfare)

So L.A.'s record of improvement, however small, is in jeopardy as Los Angeles retreats from reform – a retreat probably accelerated in the wake of recent news stories, which probably have set off another foster care panic.

Breaking the cycle

But it's not too late to break the cycle. The reporters covering child welfare at the Times right now are doing a better job than most. While they haven't always asked the right questions, at least their coverage has been free of the cheap shots at family preservation that have characterized similar recent efforts at newspapers like The Philadelphia Inquirer.

But they're going to have to do some reporting that goes beyond anything on Rainey's own checklist.

●They'll need to actually talk to birth parents – not just the ones caught up in the most horrific cases, but the ones trapped in the poverty-confused-with-neglect cases and all those "in-between" cases, in which the parents are neither saints nor deadbeats. With the emergence of a good new grassroots group of such parents, "DCFS – Give Us Back Our Children," that should get easier.

●They'll need to talk to the lawyers who see the parade of injustice every day in juvenile court (since in California, courts are closed reporters can't see for themselves).

● They'll need to consider a much wider range of solutions. One of their most recent stories dealt with a child with serious mental health problems placed with a great-grandmother who was simply too old to keep up with him. But, as is discussed on the excellent website, Witnessla.com, the story asked only why the child wasn't taken out of the home – instead of asking why intensive help, like Wraparound, wasn't brought in. Indeed, a lawsuit settlement would appear to require it. When that suit was filed, it was the subject of a pretty good story – by James Rainey. (The legal director of the Bazelon Center for Mental Health Law, one of the groups that brought the suit, is a member of NCCPR's Board of Directors.)

●And they'll need to heed the warning from Andrew Bridge in that op ed column. Wrote Bridge:

In the glare of public scrutiny, officials too often respond with reforms that drive up the number of children taken from their families.

That doesn't have to happen. It depends on how much leadership is exerted by the child welfare agency – and how much context makes its way into the news coverage.

Tragic circumstances have given the journalists at the Los Angeles Times their own second chance. I hope they make the most of it.

Victory for Tennessee children

A federal judge has refused to block a law that ever so slightly balances the scales of justice in that state's juvenile courts.

As is discussed in previous posts to this blog, the law imposes a small counter-incentive to begin to balance the huge incentives toward needless removal of children in that state. In so doing, the judge has supported children's rights to be free from unreasonable search and seizure and children's rights to be free from the enormous psychic trauma – and risk of physical and sexual abuse – that comes with needlessly being thrown into foster care. But these are rights that the group that so arrogantly calls itself Children's Rights not only won't protect, but sought to undermine in Tennessee. It was that group which sought to block the new law – and they're threatening to keep trying to stop it.

Defense-less in Michigan

Here's what happens if you're poor and a child protective services worker decides your child should be taken away from you.

The worker can make that decision on the spot. Either she can take the child herself, or she can call law enforcement to do it for her. In theory, that's only supposed to be done in an emergency – but guess who defines "emergency."

Your child, often feeling terrified – if she's young enough it can feel like a kidnapping – is trapped in foster care, not knowing if she'll ever see you again, at least until the first court hearing. That might be in "only" 24 hours - a long time in itself for a very young child - or it might be up to two weeks.

Lawyers working with CPS have used that time to prepare a case. The standard of proof they have to meet is not "beyond a reasonable doubt" – the standard used before a child murderer can be convicted in criminal court, or even the middle standard, "clear and convincing." Instead, in most states, it's merely "preponderance of the evidence," the same standard used to determine which insurance company pays for a fender-bender.

But as a practical matter, there is no standard. Because the judge knows that if he rubber-stamps hundreds of such removals the child may suffer terribly - bouncing from foster home to foster home, probably facing at least a one-in-three chance of abuse in foster care - but nothing will ever happen to the judge. Send one child home and have something go wrong and the judge knows his career may be over.

And to top it off, if the judge or CPS cut a few corners, in most states no one will ever know – because all the court hearings are secret.

And who does the parent have in her corner, standing up for her child's right to be free of foster care and back with her own family? If she's very, very lucky, she has a dedicated, hardworking lawyer with expertise in the field who has a reasonable caseload and the support staff necessary to make sure the judge knows "the other side of the story." Far more likely, she'll have someone who really may want to help, but is so overloaded with cases that he can provide no real defense. Or worse, it will be someone who hates her as much – or more – than CPS, works out of his briefcase and piles on the cases because it's the only way he can make a living.

In almost every case, the lawyer only met the parent outside the courtroom moments before that first hearing – which, as NCCPR Board Member Prof. Paul Chill of the University of Connecticut School of Law has written, is, in fact, the most important in the case and sets the stage for everything to come. (In child welfare, possession of the child is nine-tenths of the law, and this is the hearing that rubber-stamps CPS possession of the child.) In many cases, the lawyer isn't even appointed until after that hearing.

The latest glimpse into the dismal state of representation for parents – and the terrible consequences for their children - comes from a report of the American Bar Association Center on Children and the Law on parent representation in Michigan.

I'll get to the dismal findings in a moment. First, let's deal with the reason things are so dismal. It's something everyone knows but almost no one will say out loud. There is nothing to gain politically by funding high-quality legal representation for "child abusers."

But all parents whose children are torn from them are no more "child abusers" than everyone arrested is a criminal. That's supposed to be what courts are there to determine. If anything, high- quality defense counsel is even more important in child welfare cases, because in these cases it's the alleged victim – not the accused - who winds up sentenced: to foster care.

While there are times when that is, indeed, the least detrimental alternative for a child, the report itself recognizes how often that simply isn't true. (For anyone who needs still another reminder, see the comprehensive comparison of outcomes for children left in their own homes vs. children placed in foster care in typical cases, described on our website here, as well as our summary of other studies.)

Indeed, the ABA Center for Children and the Law gets it. After reciting the familiar litany of failings in the foster care system, the report notes that

Research shows improved legal representation for parents can reverse these negative trends. Better representation for parents can decrease unnecessary removals of children from their families, increase the amount and quality of services parents receive, increase the frequency and quality of visitation between children and their parents, foster the use of kinship placements, and decrease the amount of time until a child is safely returned to her parent. Parents in Michigan should have access to the kind of high quality representation that will ensure their voices are heard when decisions are made about their children. Children in Michigan will then have the best possible chance at growing up as part of the family that loves them the most. [Emphasis added]

Later, the authors add:

the constitutional rights of parents and the best interests of the child are often not in conflict. There is a growing recognition in the child welfare and legal communities that quality parent representation can protect parents' constitutional rights and improve outcomes for children. … Studies in Washington State have shown that better parent representation improves reunification rates. Washington also found quality parent representation improved outcomes where safe return was not possible

There is more on Washington State's success on page 70 of NCCPR's first Michigan report available at http://www.nccpr.org/reports/michigan1976.pdf

And examples of how high quality defense counsel for parents helps children can be found in recent stories in The
Detroit News, Michigan Lawyers Weekly, and the Detroit Free Press about the Detroit Center for Family Advocacy, one of the rare programs providing such help in Michigan.

Report findings

The report's findings concerning representation for most parents are no less appalling for the fact that they come as no surprise:

●All over the country, lawyers who do the job well say that they do the overwhelming majority of their work, and their most important work, outside the courtroom. That's when they get to know the family, do their own independent investigation – since the case files prepared by child welfare agencies so often are flat wrong - and come up with alternatives to the cookie-cutter "service plans" from CPS agencies that often only worsen a family's plight.

But in Michigan, most lawyers never do any of that – because they don't have time to do it and/or are not paid to do it.

● Only 15 percent of parents indicated they had any face to face meetings with their lawyers other than at the courthouse just before their hearings.

● Report authors saw instances in which lawyers clearly did not even recognize their own clients as they sought them out in court waiting rooms.

● Even some caseworkers are appalled. "I would like attorneys to be involved between court hearings," said one caseworker. "The attorney usually comes to the courthouse and says 'Who is my client?' then goes to talk to them in the hall … They only know what's in the court report. I doubt if they know what's going on with their clients, or care."

Another worker said attorneys sometimes don't even read the court reports. Said one caseworker: "…attorneys are chatting in the attorney conference rooms, rather than talking to their clients." Said another: "I hear parents' attorneys making lots of negative comments about their clients … they use their clients' names in casual conversation; they shouldn't stand around joking with social workers, especially when the parent is there."

● Jackson County is particularly dismal. Four fifths of parents have no lawyer at that first, most important hearing, 31 percent have no lawyer at subsequent hearings and even at the hearing where children may lose their parents forever – the termination of parental rights hearing – 28 percent have no lawyer. Genesee, Ottawa, Kalamazoo, Lapeer and Midland Counties also do particularly poorly at providing representation at the first hearing.

● In one county (the report doesn't say which) judges are so appalled that they report trying to take over the job themselves, asking of witnesses from the bench the kinds of questions parents' lawyers should be asking.

● 45 percent of judges surveyed said parents attorneys rarely called expert witnesses, and 60 percent said they only sometimes filed written motions and cited legal authority. But in a focus group one lawyer had an explanation for that: "Judges don't want to hear legal arguments," he said.

Where the report falls short is in its recommendations – mostly tepid half-measures. In fact, what children in Michigan and everywhere else need is for their parents to have top notch representation along the lines of the Detroit Center for Family Advocacy and similar efforts around the country; an institutional provider employing salaried lawyers with their own support staff.

Most parents who lose their children to the system are nothing like the sadists and brutes whose cases make headlines. And that's why it is so urgent for their children that these parents have someone making a competent case on their behalf.

Money is no excuse for failing to provide this assistance, or at least implement the recommendations in the report – because these recommendations also are money savers. Foster care is expensive – group homes and institutions more so. By reducing needless foster care, high-quality legal representation for birth parents is likely to pay for itself.

That means the recommendations in this report are more important than anything in the pathetic consent decree between the Michigan Department of Human Services and the group that so arrogantly calls itself "Children's Rights." The decree is, of course, silent on this issue. And initially, before the savings start to accrue, the recommendations could be paid for by diverting some of that money Michigan Department of Human Services Director Ismael Ahmed is throwing at residential treatment providers in the form of rate increases.

The most fundamental right of any child is that all sides be able to make the best possible case so a judge can make the best possible decision. But that is impossible if that child's parents are, literally, defense-less.

To the extent that there is any good news in Michigan courts at all it is simply this: in Michigan, unlike most states, court hearings in these kinds of cases are open. So no reporter needs to wait for a report to see the parade of injustice pass by. She or he can just walk in and watch.

Horrors! A judge is thinking twice about foster care!

In a previous post to this Blog, I wrote about a Tennessee law requiring that, when a juvenile court judge in a given county is so fanatical about tearing apart families that entries into foster care exceed triple the state average, that county has to pick up the tab for the additional placements. This small brake on removal-obsessed judges would slightly counterbalance all the other incentives, personal, political, and financial that push for needless removal of children.

Of course, the group that so arrogantly calls itself "Children's Rights" is trying to block the law.

And no wonder. Because now the "horrors" caused by this law have been revealed for all to see.

They are outlined in a deposition played at a court hearing yesterday. The deposition is from April Meldrum, the juvenile court judge in Anderson County, the one and only county that actually is affected by this law. According to the Associated Press, Meldrum says she and her staff now are working much harder to find ways to keep children out of foster care – to the point that, in one case, a child fell asleep in the courtroom at 11pm, while they kept looking.

The story doesn't say what ultimately happened, but, since you can be sure the judge would have mentioned it if these efforts failed and the child wound up in foster care anyway, odds are the result was that this child found something better – perhaps placement with a relative. Chances are the child was spared from the one-in-three risk of abuse in foster care with strangers, and spared from the inherent emotional trauma of what should properly be called "stranger care." In short, this child probably was spared from fates far worse than a long night in a courtroom.

The judge also lamented the fact that she is now deterred from stashing children away in foster care "for a few days" while the state tries to find a family friend or a relative.

But that's exactly as it should be. For a young enough child, even a few days torn from everyone loving and familiar and parked with strangers can feel like a kidnapping. The psychic damage can be significant. That's why good systems use a model called "first placement, best placement" which means exactly what it says.

But here's the real horror: The AP story revealed that the actual rate of child removal in Anderson County is five times the state average. That would make the rate of child removal in Anderson County not just the worst in Tennessee, but among the very worst in the nation, by far. It would make Anderson County one of about a half dozen candidates for Child Removal Capital of America.

If the new law is allowed to stand, that finally might change. Judge Meldrum and county officials would have to start building their own infrastructure of prevention and family preservation to supplement the state's efforts. She'd have to stop engaging in knee-jerk child removal. Maybe she'd even sign up for a training course in child development and finally learn a little about what she's done to all those children she's parked in foster care "for a few days."

Ultimately, she'd probably discover how wrong she'd been about so many previous decisions – and maybe even thank the legislature for giving her just the nudge she needed to reconsider her approach, and learn how to truly decide cases on their merits.

One can certainly see how all that would horrify a group like CR.

A few minutes with Karl Dennis

HAVE A LOOK AT A VIDEO THE RESIDENTIAL TREATMENT INDUSTRY DOESN'T WANT YOU TO SEE

I've often mentioned the great paradox of child welfare: the more expensive the option the worse it is for children. The most expensive, and worst, option of all, is locking children away in "residential treatment centers" (RTCs) – really just orphanages with fancy new name. The evidence is overwhelming that they simply don't work.

There are far better, and less expensive, options. One of them is Wraparound. To steal a line first used to describe the child welfare reform in Alabama, Wraparound moves the system instead of the child. Wraparound brings whatever help a family needs right into the home or, when some kind of placement really is needed, right into the foster home. One of the most extensive such programs, Wraparound Milwaukee, just won an Innovations in American Government award from Harvard's Kennedy School of Government.

But precisely because Wraparound will be different for every family, it can be hard to explain exactly what it is. Some examples help. And who better to offer them than the father of Wraparound, Karl Dennis? Mr. Dennis founded the first Wraparound agency, Kaleidoscope, in Chicago. Though he now is retired, Mr. Dennis still speaks all over the country, and I've never met anyone who's heard one of his presentations who wasn't glad she or he took the time to listen. (Of course, I don't speak to many RTC directors, so…)

So I hope everyone who reads this Blog will take advantage of the opportunity offered by the Family Advocacy Movement, the excellent grassroots group in Nebraska. They invited Mr. Dennis to be their keynote speaker at a conference on Oct 2. Here's an except from his presentation:

UPDATED OCTOBER 7: A family is gagged - pass it on!

Please see the update at the end of this post

LINCOLN, NEB: Yesterday, I had the honor of being one of the speakers at a public forum in Omaha organized by the Family Advocacy Movement, a grassroots group organized by families affected by Nebraska's "Safe Haven" debacle last year, and families with similar issues.

Such laws usually are passed to allow parents to abandon infants in safe places, no questions asked. But the Nebraska law had no age limit. So some desperate parents, usually parents who had struggled for years to find help for children with severe mental illness, only to be turned away over and over, invoked the law and "abandoned" older children.

What the law really did was put a public face on a widespread problem. Every year, thousands of families are forced to surrender their children to states - often admitting to phony neglect charges - because it's the only way to get mental health care for those children.

But the response from the Nebraska Department of Health and Human Services was almost unspeakably cruel, ranging from sick jokes to snide comments about the parents supposedly wanting to "push the easy button." (For details, see these previous posts to this blog.)

That kind of family-bashing is no surprise here in Nebraska, which, year after year tears apart families at one of the highest rates in the nation.

Ultimately, the legislature amended the law to apply only to newborns. The former head of the child welfare agency, Todd Landry, smugly predicted that once that happened, "all these other questions [will] disappear."

For the past year, the Family Advocacy Movement has put the state on notice that that's not about to happen.

There were lots of speakers at the forum yesterday - but the most eloquent moment was a moment of silence. That moment was used to honor Sue and Avery Quakenbush, two Safe Haven parents who are no longer allowed even to tell their story. After their story appeared in the Wall Street Journal in November, 2008, Nebraska DHHS went to court to obtain a gag order against the Quakenbushes.

But even the Nebraska Department of Health and Human Services can't censor a news story - especially one that's already been published.

So there is one thing all of us can do to support the Quakenbushes, the other safe haven families, other families in similar situations, and everyone else who's been bullied by a child welfare agency that cares a lot more about its own image than it does about about the young people it is supposed to serve: We can take that Wall Street Journal story and, electronically, pass it on. We can send it to everyone we know who might share our outrage at the gagging of a suffering family. We can make clear to Nebraska DHHS that trying to hide what they've done will only call more attention to the agency's failings.

Later this week, I'll send the story to the NCCPR Child Welfare News Exchange, NCCPR's e-mail list of more than 300 reporters around the country.

So here's that link to the Journal story again: http://online.wsj.com/article/SB122728078741248013.html Pass it on!

One footnote: The two top officials at Nebraska HHS attended the forum. The CEO of the agency (that's the title in Nebraska) mouthed the usual platitudes about wanting to listen and not taking it personally, etc. etc. But, as the Lincoln Journal Star reported, then he admitted that one thing bothered him: the fact that no one from his agency was among the speakers.

Yeah. It's frustrating being gagged, isn't it?

UPDATE, OCTOBER 7: The Lincoln Journal-Star reports that the Nebraska Court of Appeals will hear an appeal of the gag order on October 21.

According to the story, the Nebraska Department of Health and Human Services contends that the Quakenbushes are perfectly free to discuss their concerns – just as long as they don’t mention what their child actually is suffering from, what medicines he was given, and who treated him. In other words, the Quakenbushes can say whatever they want – as long as they provide no actual evidence to back up their claims.

In the story, DHHS also claims that their son objected to the disclosures in the original Wall Street Journal story. But we have no way of knowing if that’s true. We don’t know if he read the story, or, if not, what he was told about what it said. We don’t even know if he knows that his privacy was protected by withholding his last name, which is not Quakenbush.

But this much we do know: The head of the Nebraska child welfare agency at the time of the “safe haven” debacle, Todd Landry, wanted the whole issue to “disappear” – meaning the “safe haven” families and all the others simply would keep on suffering in silence. I suspect his successors share that goal.

The only thing that stands between them and their goal is the ability of families like the Quakenbushes, and their supporters, to tell the world what the State of Nebraska is doing to their children.

The frontline rebellion that saved kinship care in Michigan

So apparently it was quite a love fest between the group that so arrogantly calls itself "Children's Rights" (CR) and the Michigan Department of Human Services (DHS) in federal court yesterday. Not surprising. When a group that doesn't care about keeping families together sues an agency that doesn't care about keeping families together, and they wind up with a settlement that boosts funds for foster care and institutions at the expense of prevention and family preservation - what's not to love, right?

But if the judge really believes the progress is "truly laudatory and exceptional" I have to believe – or at least hope – she hasn't actually read the report of the court monitor overseeing the decree.

In yesterday's post to this Blog, I noted the biggest revelation in the report: the fact that DHS Director Ismael Ahmed's budget cuts in prevention and family preservation may be illegal.

But there are other revelations buried in the 95-page document. Among them is one concerning how CR and DHS were stopped from crippling kinship care in Michigan.

I'll discuss that at the end of this post. First, NCCPR's take on the key points raised in the report.

Though there are exceptions, in general, the monitor's report reveals largely pathetic compliance with a largely pathetic consent decree.

KEY POINTS IN THE MONITOR'S REPORT:

The rebellion that saved kinship care is one indication that the people on the frontlines are outthinking both CR and DHS. But there are others:

--Despite the pressure to "take the child and run" entries into foster care declined during the monitoring period – a period that happens to coincide with the height of NCCPR's activity in Michigan. I am proud of the role NCCPR played in dampening pressure for needless removal and reinforcing the best instincts of the state's best frontline workers.

--As noted in yesterday's post to this Blog, DHS is ahead of schedule in reunifying families where children have been trapped in foster care more than a year (even as private agencies, paid for every day they hold these children in foster care, fall behind.) But also, as noted previously, the budget cuts jeopardize the success of the reunifications.

--In contrast, DHS is behind in helping another group – legal orphans created by the state's mad rush to terminate parental rights. In part that's because it appears DHS and CR are pushing only one answer for these children: Adoption. Since it is likely that, in many of these cases, parental rights never should have been terminated, and since it is common for these children, once they reach 18 and are free of the system, to head right back to their birth parents, DHS instead should be focusing on seeing whether there are more cases in which parental rights should be restored and efforts at reunification revived.

--Another key barrier to adoption is institutionalization. Almost all foster children are adopted by their extended family or foster parents. Institutionalizing children denies them their best shot at adoption. Since Ismael Ahmed is apparently in love with institutional care, it's no wonder getting children adopted remains a problem.

PATHETIC COMPLIANCE, PATHETIC DECREE

The progress on reunification is one of the very few areas of substantive progress noted in the monitor's report. Most of the areas in which goals were achieved were bureaucratic.

If the requirement involved shifting job titles and moving around boxes on a table of organization, DHS generally succeeded. When it involved actually improving outcomes for children, DHS generally failed. In other words, DHS is good at rearranging the deck chairs, bad at bailing out the boat.

So, for example, DHS managed to reorganize itself and create that separate child welfare division that CR craves, even though there is no evidence that agencies that have such divisions work better - or worse – than agencies that don't.

But DHS failed to keep much more important commitments.

--DHS failed to make sure that foster children are covered by Medicaid.

--DHS failed to make sure that children aging out of foster care have health insurance.

--DHS failed to keep its promise to spend more on mental health services for foster children.

--DHS failed to refer all children aging out of foster care for housing assistance.

And perhaps most tragic:

--DHS failed to make sure children who are not delinquent are not placed in juvenile detention. As the monitor's report noted, there is widespread consensus that "a single day in jail or detention changes a child's life forever" – and not for the better.

When it comes to other provisions of the consent decree that really might do some good – DHS failed to meet its deadline and CR obligingly extended that deadline:

--Limits on institutionalizing children: Delayed. (No surprise that the always institution-friendly Ismael Ahmed isn't going to rush to put limits on warehousing children in institutions run by the state's powerful private agencies.)

--Development of treatment foster homes (a key alternative to institutionalization): Delayed.

--Performance-based contracting, in which private agencies actually would be held accountable for helping children, instead of just raking in per diems by keeping them in foster care as long as possible: Delayed.

--Reviewing policies concerning the use of potent psychiatric medications on foster children: Delayed.

--Limits on out-of-county placements: Delayed

OTHER FINDINGS

--As it began to come to terms with its dreadful data gathering capacity and started actually learning about the children it's supposed to care for, DHS found far more children in particularly vulnerable groups – such as children remaining in foster homes where abuse was alleged and children languishing in institutions – than the agency expected.

That, in turn, is delaying efforts to give these cases special review, which means, of course, these children will be warehoused in institutions or trapped in potentially abusive foster homes even longer.

--There are some potentially disturbing data concerning deaths in foster care. I have long cautioned about drawing inferences about overall system performance based on fatalities, but since they remain the measure of choice for media, the information in the report about such deaths deserves further scrutiny.

The data show that from March 31, 2005 through March 31 2009, 88 Michigan children died in foster care. In many cases, the deaths may be due to illness or other factors for which the system is not at fault. But in 51 cases, there were suspicions of abuse or neglect in connection with these deaths. In ten cases the suspicions were substantiated. But abuse in foster care always is underestimated when the state is, in effect, investigating itself, and the monitor's report found that some of the investigations were disturbingly superficial. And there is no systematic process for investigating these deaths.

THE FRONTLINE REBELLION

The original consent decree had an idiotic clause requiring all kinship care homes to be formally licensed, including homes where grandparents and other relatives had been safely and lovingly caring for children for years. Unless a grandparent either could obtain a hard-to-get waiver or comply with ten single-spaced pages of requirements, many of them unrelated to health and safety, their grandchildren would be expelled from their homes. As I noted at the time, the home in which President Obama was raised by his grandmother could not have qualified for licensure under these regulations.

Intense pressure by NCCPR and other advocates ultimately forced DHS and CR to back down. But the monitor's report reveals something else that was going on as well – what amounts to a rebellion by dedicated frontline workers who either were too appalled by the policy to enforce it, or simply couldn't believe DHS and CR really wanted them to do something so stupid.

According to the monitor's report, the rebellion began after DHS issued a memo, called an "L-Letter," instituting the draconian new policy called for by the consent decree. The letter ordered all homes to be licensed and ordered the removal of children from homes that could not or would not be licensed. According to the monitor's report:

The reaction was immediate. Concerned judges, advocates, and field staff thought this new L-Letter presaged a retreat from the State's longstanding commitment to relative care. Judges also saw a handful of examples of families who were being told children long in their care would be removed if the families did not cooperate with licensure. The majority of staff in the field waited and held off on moving children, asking for clarification about the policy. Staff continued to place children coming into care with kin… [emphasis added.]

The waiting paid off. In March, 2009, in the wake of pressure from NCCPR and others, DHS issued a revised L-Letter backing off from the mandatory licensure policy. As the monitor reports:

After the issuance of the revised L‐Letter and outreach by [DHS child welfare division] leadership, word spread quickly that mandatory removal of children was not DHS’ policy, and managers and judges were able to reinforce that it was not necessary to remove children from safe relative homes because of licensing challenges.

Thanks to the efforts of NCCPR and other outside advocates, and the dedication of so many frontline staff, there was no reduction in the proportion of children placed with relatives.

But the monitor appears to feel the steps taken so far are not enough to ensure that this record continues. He goes on to send his own message to the frontlines, explaining to caseworkers that they don't have to limit the number of waivers from licensing requirements to ten percent.

The monitor's report also makes clear that the original attempt to force all kinship care parents into licensure had little if anything to do with safety – it was, and is, strictly about money. Even a CR press release admits as much.

The licensing requirement was designed to allow DHS to get federal aid for the placements and then use that aid to provide grandparents with payments equal to those paid to strangers (which is, in fact required by federal law, if relatives are licensed).

That's a commendable goal. But the fact that it didn't occur to CR that impoverished grandparents might not be able to meet ten pages of hypertechnical licensing requirements – or simply might be too suspicious of DHS to want to go through the process – illustrates perfectly the bureaucratic mindset that dominates CR; the notion that real human beings are like boxes on an organization table, to be moved around and manipulated at will in order to create the best looking human flow chart imaginable.

In CR's hyper-bureaucratic mind, anything that looks good on paper must work in real life. It's a perfect example of why the people at CR are like the people you least want to see when you finally make it to the front of the line at the DMV.