Foster care in Los Angeles: The L.A. Times Sleaze machine goes into overdrive

            Los Angeles Times reporter Garrett (I really really want that Pulitzer) Therolf has a story about another case in which the Los Angeles County Department of Children and Family Services left a child in a dangerous home.

            If the story is correct (and given Therolf’s penchant for selective reporting, one never knows) then DCFS workers closed a case on the family after a shoddy, superficial investigation.  Then (and this we know for sure) the family moved to another county where the same child was discovered tortured in ways that would tax the imagination of Augusto Pinochet or Saddam Hussein.

            As usual with a Therolf story, the problem is what was left out when he pretended to put the horror story in some kind of context.

            Therolf claims: “More than 65 children have died of abuse or neglect since the beginning of 2008 after being referred to the department, according to county statistics. The rate of such deaths has increased over that period, and county officials have acknowledged that many involved case management errors.”

            Therolf neglects to mention: As a recent Times op ed column by two county supervisors points out, we don’t really know if deaths have increased or not.  

            If they have increased, it’s almost certainly because of the foster-care panic set off, in large measure, by Therolf’s own reporting.

            Therolf claims: "Based on a review of county data, a researcher hired by the state found that, since 2007, children left by the department in their homes after an investigation increasingly have experienced abuse again within a year."

            Therolf neglects to mention that even with this one-year rise, the same measure of reabuse, using the same time frame, still is more than 20 percent lower than it was in 1998, when the county was taking away even more children than it’s taking now and had vastly more children trapped in foster care.  

           Therolf neglects to mention that when the same measure is used with the standard time frame used across the country by the federal government, the reabuse rate is continuing to decline. 

           Therolf neglects to mention that Los Angeles County continues to tear apart families at one of the highest rates among large metropolitan areas.  When you do that, caseworkers tend to be overloaded and make horrible mistakes – in all directions.

            As usual, it was up to Celeste Fremon of Witnessla.com to provide some of the context that Therolf left out. (The full item is the fourth one down when you click here).   She writes:

At one end of the spectrum you have horrors like this one. At the other end, you have kids who should absolutely positively not be taken away from their parents, but are—and suffer dreadfully for it—because somebody decides that it’s a swell idea to yank them. I’ve seen it happen repeatedly. Frankly, in most of the latter cases, law enforcement is involved and the entry of DCFS has to do with someone in the household—not necessarily the parent— being arrested on a drug charge. No abuse or neglect required.

Will someone at the County please explain this insane discrepancy? I would find it helpful. [Emphasis in original.]

            While it would indeed be nice if someone at DCFS were candid enough to explain that they are so overloaded with false allegations and trivial cases they are bound to screw up in all directions, explaining insane discrepancies in the workings of government is really the job of great big newspapers with lots of reporters (and, relatively speaking, the L.A. Times still qualifies).

            Garrett Therolf and his colleagues know full well that the errors go in all directions.

For example, for months, the grassroots group DCFS-Give Us Back Our Children has been trying to get the Times to report on a horrific case involving a grandmother so beloved by DCFS that they were pressuring her to adopt the baby grandchild in her care.  But when grandma asked too many questions, and became so upset at the pressure that she had a seizure, DCFS seized the baby – even though other relatives were ready to take the baby immediately.

             DCFS Give Us Back Our Children has documented the emotional damage inflicted on the child by being needlessly placed in foster care, before she was returned to her family.

            The Times simply has chosen to ignore this case, and the other cases which, as Fremon points out, “happen repeatedly.”

            And the Times has chosen to ignore the extent to which the errors are related: The more time an agency wastes on wrongful removal, the less time it has to find children in real danger.

UPDATED, OCT. 30: Foster care in South Carolina and New York: The power of getting the story right

          UPDATE: Johnny Smith's daughter will get her father back on Thursday.

  I’ve written a fair amount on this blog about shoddy journalism, the kind that drags down my former profession.  So it’s good to have a chance to write about journalism that elevates that profession – journalism that has just helped reunite a traumatized little girl with her father, Johnny Smith.

            Two years ago, the Albany, N.Y. Times Union ran a five paragraph item on a sexual assault of a three-year-old in Warren County, about 60 miles north.  The last paragraph says “The child is now in foster care.”

            She’s still there.

            And odds are the only reason she’s finally getting out, is because of  Issac Bailey, a tenacious columnist for The Sun News in Myrtle Beach, South Carolina – and his editors, who put the story of this child, and her father, on the front page for six days in a row.

            Why Myrtle Beach, South Carolina?  Because not long before the child was brutally assaulted, the mother had absconded with her, and taken her to Warren County.  And all along, this girl’s father, Johnny Smith of Conway, SC, has been fighting to get her out of foster care and back home.

            Part one of Bailey’s series ends this way:

          “I want to know what I did wrong," Smith said he thought long ago.  He found out later it matters little that the answer to his question is: nothing.

          Originally, the screw-ups were on the South Carolina end.  That state’s Department of Social Services refused to approve the father as a placement for his own daughter  - the daughter he’d raised from birth until she was stolen - because he was poor.  You know all those times child welfare agencies say they never separate families because of poverty?  Six front page stories show that, in this case, that was a lie.

          Normally, a parent at least can challenge such a decision in court.  But not when the case involves more than one state – thanks to an incredibly screwed-up document known as the Interstate Compact on the Placement of Children.  As you’ll see in Bailey’s stories, the comments of those in charge of this awful back-alley of child welfare set some kind of record for arrogance even by the standards of child welfare agencies.

          Fortunately, after Bailey started asking tough questions, South Carolina reversed itself.  But meanwhile, in New York, where individual counties run child welfare systems, Warren County was moving full speed toward termination of parental rights.

         Bailey first contacted NCCPR early on in his reporting.  NCCPR put him in touch with the nation’s leading expert on the ICPC, and someone working hard to reform it, Prof. Vivek Sankaran of the University of Michigan Law School Child Advocacy Law Clinic and director of the Detroit Center for Family Advocacy.

         After the stories were published NCCPR contacted journalists whose work would be seen in Warren County, including another very good columnist, Carl Strock of the Daily Gazette in Schenectady.  He wrote an excellent column, available from the newspaper’s paid archive.

         Yesterday, Bailey reports, the court did the right thing.  No later than Christmas, and maybe as soon as tomorrow, Johnny Smith’s daughter should be going home.  And here's the account from today's Times Union.

Foster care in L.A.: What planet are they on?

            It’s been a standard feature of science fiction films and television series at least since The Twilight Zone: the plot involving the “parallel universe” – with the planet that looks just like Earth populated with counterparts to ourselves, but where things are just a little different.  There’s even a standard visual cue: Blimps as a common means of transportation.

            I mention this because I’m beginning to wonder about Los Angeles.  In the Los Angeles I’m used to, the big newspaper in town is serious and sober, and in recent decades at least, known for careful, in-depth reporting that elevated the profession of journalism.  The politicians on the other hand … Well, let’s just say there’s a reason I’ve been referring to the Los Angeles County Board of Supervisors as “the B.S.”

            And it’s not just me.  Throughout the child welfare community, the Board of Supervisors has such a bad reputation that it’s getting harder and harder to get anyone any good to take the job of running the county Department of Children and Family Services.  (That may explain why Trish Ploehn still has that particular job.)

            But lately things have gotten weird.  The Los Angeles Times has started to read like the New York Post, as reporter Garrett Therolf continues his reckless crusade to force the county to take away more children, systematically omitting facts and voices that contradict his point of view.  David Simon, the former Baltimore Sun reporter who wrote The Wire has a great phrase for work like Therolf’s: “Pulitzer-sniffing.”

            And now, who should come forward with a smart, thoughtful op ed column, asking everyone to calm down and gather all the facts before jumping to conclusions?  Not one, but two of the five members of the Board of Supervisors.  They write:

Facts need to dictate how Los Angeles handles its most vulnerable children. Before we call for a major reversal in child welfare policy, one that could lead to a rush of children being taken from their parents prematurely, we need to honestly evaluate where we are today. Evidence, not emotion, needs to fuel the debate.

            One of the authors is Mark Ridley-Thomas.  He’s the newest member of the board, so his call for common sense and rationality could be chalked up to inexperience.  But he is joined by Michael Antonovich who, in the past, was one of the worst offenders.  They both deserve credit for taking an unpopular stand and risking the wrath of what still is the most powerful media voice in Southern California – assuming of course this is the real Los Angeles County.

            It probably is – but just in case, keep an eye out for blimps.

UPDATE: There's a smart, sensible post on all this from the blog Witnessla.com But, happily, there is nothing unusual about that.

UPDATED: Foster care in Los Angeles: LA Times gives Sam Zell just what he wants

SEE THE UPDATE AT THE CONCLUSION OF THIS POST


At the end of this post, readers will find links to the superb database maintained by the Center for Social Services Research at the University of California at Berkeley.  Using that database, readers can check for themselves the long-term data cited in this post.

Earlier this month, there was a lot of buzz in media circles about a 4000-word piece by New York Times media critic David Carr about the culture of sleaze brought to the Tribune Company, owner of the Los Angeles Times, by Sam Zell, the man who bought the company – and drove it into bankruptcy. 

There are several ways a reporter can respond to a new boss like this.  One is to quit – but that’s extremely difficult in the current job market for journalists.  Another is to raise hell until you’re fired – but that leads to the same problem as option #1.  A third way is to just keep your head down and do the best work you can in spite of the climate.

Or you can just give the new guy what he wants.

Anyone who read the New York Times story knows what kind of journalism Sam Zell wants.  And apparently, Los Angeles Times reporter Garrett Therolf is determined to give it to him - no matter how many children may be endangered in the process.  Or, at least, Therolf’s latest story about child welfare “raises questions” about whether that is his goal.

To sum up the story: Therolf reports that, since 2008, deaths of children “known to the system” in Los Angeles County have increased.  Then County Supervisor Zev Yaroslavsky, who has been getting child welfare wrong for decades, obligingly says exactly what Therolf wants: He scapegoats the county’s efforts to keep families together.

But to the extent that the data in the story are evidence of anything, it is that Therolf's "reporting," and Yaroslavsky's demagoguery, may be endangering children. 

Ever since Therolf began his crusade to tear apart more families, we've warned that foster-care panics, sudden surges in removals of children by workers terrified of being on the front page, are followed by increases in child abuse deaths.  That's exactly what has happened in Los Angeles County. 

THE KEY NUMBER IS ENTRIES INTO CARE

And that's almost certainly why Therolf's story mentions only the number of children in foster care on any given day (the "snapshot number")  - neglecting to mention that the number of children taken away from their parents over the course of a year increased in 2009 - thanks to the foster-care panic.    The number almost certainly is increasing again in 2010.   In other words, the increase in removals was accompanied by an increase in deaths of children known-to-the-system.

After I posted an early, abbreviated version of this Blog in the comments section below an earlier version of his story, Therolf e-mailed to say he’d posted a response in which he says:

Mr. Wexler is wrong to suggest that The Times has suppressed any news of a "foster care panic." The reality is that the detention numbers have seen no sustained rise since the newspaper began its series of reporting on child fatalities in the system. Readers can access the detention figures and judge for themselves here: http://bit.ly/9bR2x9  

I certainly hope Times readers call Therolf’s bluff.  Because what they’ll find are numbers almost identical to those in NCCPR’s own report that first revealed the foster-care panic.

As I pointed out in an e-mail to Therolf:

There always are fluctuations from month to month.  That's why you determine a panic by comparing a month to the same month the previous year.  We predicted the panic would begin in September 2009, and when you compare September 2009 to September 2008 there is indeed a spike.  Same with October, November, and December, comparing each year to the year before.  It stopped at the start of 2010 and started up again in April and May. [The most recent months for which data are available.]

            I explained this to you last year.  You chose to ignore it, and now, because it doesn't fit your master narrative, you decline to report it. 

            In fact the panic actually began even sooner, in August 2009, a response to stories that ran in the Times in July. In addition, the data NCCPR posted, which go back a year farther than Therolf’s link, show that, with one exception, in each of those months in 2009, the number of entries was the highest since 2006 – and the five-month total not only was a large increase in itself, it also reversed two years of small declines over those same months.

Indeed, if Garrett Therolf really wanted Times readers to “judge for themselves” he would have put these figures into the newspaper, with perspective from all sides, rather than only mentioning them now in the comments section of the Times website.

           It is true that the panic probably would be even worse if not for a waiver from federal funding restrictions – a waiver Therolf repeatedly has smeared, most recently in this latest story, with no meaningful response allowed from anyone who disagrees with Therolf (More on this below.)

            And if Therolf really wanted readers to “judge for themselves,” he’d report on how the rate of removal in Los Angeles County compares with other large metropolitan areas – L.A.’s is among the highest, more than double the rate of Miami-Dade County Florida and more than four times the rate of metropolitan Chicago – both places where independent evaluations have found that successful efforts to curb needless foster care improved child safety.

            But that’s far from the only failing in this story:

Even before the panic, the number of children torn from their families in L.A. County has increased every year but one since 2004.  (That one year was 2008, which, according to Therolf's own story, was the low point in deaths of children known-to-the-system).  And, as the story itself makes clear, the time from 2008 through 2010 is the only time period in which it's possible to do an accurate comparison, because the same reviewers appear to be applying the same standards to all cases.  Data for previous years probably can't be compared reliably to the more recent data - or to anything else.

None of this is hindsight.  Based on what we've seen when similar lousy journalism set off similar panics all across the country, we warned more than a year ago, in this Times op ed column that

It's no wonder some lawyers say they're already seeing a foster care panic -- a sudden surge in removals of children from their homes. That only further overloads the system, making it even less likely that the next child in real danger will be found. That's why, across the country, such panics have been followed by increases in deaths of children "known to the system."

So if the harm to all the children needlessly taken isn't enough, the fact that foster-care panics make all children less safe ought to be reason enough for Therolf to report the full story, instead of just the parts that make the kind of headlines someone like Sam Zell will love.  And the fact that foster-care panics make all children less safe ought to be reason enough for Yaroslavsky to stop pouring gasoline on the fire, and start looking for ways to do more, not less, to safely keep families together.

THE SNAPSHOT NUMBER DOESN'T PROVE THEROLF'S POINT EITHER

 Yes, the number of children in foster care on any given day still is declining, but the decline is very slow, and has been quite slow for some time.  The really big plunge in foster care numbers took place all the way back in the time from 1999 through 2003, and Therolf's story says nothing about child abuse fatalities then.  Nor does it tell us anything about the number of deaths of children "known to the system" back in 1997 and 1998, when the number of children in foster care was at its height.

FATALITIES ARE NO WAY TO MEASURE IF SAFETY IS IMPROVING

What all of this really shows is that fatalities simply can't be used to judge the overall performance of a child welfare system in assessing child safety.  The data are too unreliable, and too subjective.  (For example: If a toddler previously known to DCFS wakes up early one morning, unlatches the back door, wanders outside, falls into a body of water and drowns, is it neglect or an accident?) [UPDATE, OCT. 19: Indeed, as the competing Los Angeles Daily News reports, one reason the new figures are higher than the old figures is that the old figures didn't include drownings and the new ones do.]

All of this is explained a report cited often on this Blog, from a Texas group, the Center for Public Policy Priorities - a group that formerly was fanatical about child removal, but now seems to be changing its mind - as a result of the evidence they developed.  The report also concludes that none of the traditional investigative functions of agencies like DCFS has an impact on child abuse fatalities - but you can reduce them with more efforts at prevention, and more efforts to curb poverty and teen pregnancy.

BUT SAFETY CAN BE MEASURED

There is a far better, though still imperfect, safety measure - the one the federal government uses: overall reabuse of children left in their own homes.  That has been steadily improving in Los Angeles County for a decade, all the way through September 2009, the most recent data available, a period that ends just as the panic was beginning.   This measure improved when entries into care went way down, in the early part of the decade, and it's continued to improve when entries went up, then down, then up again.

Since those data don't prove Garrett Therolf's point, Garrett Therolf declines to share them with readers.

Instead, he includes one brief quote from a professor evaluating the waiver who said reabuse increased since the waiver began.  But he used a different time frame from the standard used by the federal government.  In addition, the Berkeley database shows a much smaller increase, even when using this time frame.  And using either time frame, the highest rate of reabuse, by far, was in 1998 – the same year both the snapshot number and entries into foster care were at record highs.  So if the waiver is supposedly causing an increase in reabuse now, what caused an even higher rate of reabuse when there was no waiver, and vastly more children in foster care? Again, since this context spoils Therolf’s master narrative, he doesn’t share it with readers.

But suppose, hypothetically, real measures of safety had worsened in the last two years.  Instead of asking why and what can be done about it, Therolf, speaking through Yaroslavsky, simply offers his own "solution" - take away more children - instead of asking why other places with the same waiver, like Florida, have improved safety, and asking how Los Angeles County can do the same.

You can see all the long-term data for yourself here:

All of these links go to the Berkeley database mentioned at the top of this post.  In each case, after clicking on the link, follow the instructions to create a table involving multiple time periods and choose Los Angeles County.  (The pre-selected box under “interval” will give you data that end with the most recent full year available.)  In the case of “entries into care” we checked the box for entries of any duration, rather than the default, which counts only entries longer than a week.  For reabuse, we chose to the measure within six months because that is the standard time frame used by the federal government:

Entries into care

“Snapshot number” of children in care

Reabuse

UPDATE, OCT. 19: Be sure to check out the story in the competing Los Angeles Daily News for some of the crucial context the Times left out.  For example, The Daily News reports that part of the reason for the higher numbers is a broader definition of child maltreatment deaths that includes drowning.  That isn’t wrong in itself, but drowning is among the hardest causes of death to categorize objectively, as indicated in the “accident or neglect?” example above.

Also, once again, Deanne Tilton Durfee is refusing to jump on the Times’ bandwagon. Durfee heads L.A.'s Interagency Council on Abuse and Neglect, serves on the county's child abuse death review team, heads the National Center for Child Fatality Review – and is no friend of family preservation. But she’s still not buying the snake oil the Times and Yaroslavsky are trying to sell.

Supreme Court will decide if “children’s rights” include the Constitution’s #4

OR TO PUT IT ANOTHER WAY: DOES A NINE-YEAR-OLD GIRL HAVE AS MUCH CONSTITUTIONAL PROTECTION AS TIMOTHY McVEIGH?

            The U.S. Supreme Court has agreed to hear an appeal by Oregon’s Department of Human Services (DHS) of a ruling by the 9^th Circuit U.S. Court of Appeals declaring that “children’s rights” include the right to be free from unreasonable search and seizure.

            The Court of Appeals also ruled that when a little girl is being stripsearched and having her genitals photographed by a total stranger, she also has a right to have her mother present to comfort her.  DHS doesn’t like that, either.

            So here’s what this case really is about:  Does a child have a right to be free from traumatic interrogations by total strangers when there is so little justification that a child welfare agency can’t even get a warrant?  Do children have a right to be free from weeks of needless foster care when a caseworker may have lied to obtain the right to take the children away? (More on that below.)  And does a young child at least have the right to have her mother present during an extremely traumatic medical exam?

            DHS thinks the answer to all of these questions should be “no.”  You can bet the overwhelming majority of child protective services agencies feel the same way.  Which means DHS and its counterparts really are seeking the the right to inflict nearly unlimited state-sanctioned child abuse.

            Indirectly, the case raises one more issue: Almost all of the questions in dispute in this case could have been quickly and easily resolved if only agencies like DHS were required to tape record all interviews in child protective services investigations – I don’t mean elaborate videotaping, a simple microcassette tape recorder (or digital equivalent) would be enough.

A RULING FOR CHILDREN’S RIGHTS

            The full opinion from the Court of Appeals in the case, now called Camreta v. Greene, is well worth reading, if only because, right at the outset, the court refuses to be suckered by the party line child protective services agencies use whenever they want to trample on civil liberties: The one that says: If you support civil liberties you’re putting parents rights ahead of children’s rights – only if you trample on those liberties are you somehow standing up for “children’s rights.”

The Court of Appeals wasn’t fooled.  On the contrary, the court recognized that  Fourth Amendment (and Fourteenth Amendment) rights are a vital protection for the children themselves.

            Citing a law review article on the topic, the decision notes that:

Of the 3.6 million investigations conducted by state and local agencies in 2006, only about a quarter concluded that the children were indeed victims of abuse. … This discrepancy creates the risk that “in the name of saving children from the harm that their parents and guardians are thought to pose, states ultimately cause more harm to many more children than they ever help.”

            In this case, the family alleges that a DHS caseworker, accompanied by an armed deputy sheriff, went to a child’s school, interrogated the nine-year-old for two hours and badgered her into accusing her father of sexual abuse.  The girl claims she finally gave in to get the interview over with.  The caseworker denies this, saying the interrogation lasted one hour and the statements were made freely.  Too bad there’s no tape recording so we’d know one way or the other.

ECHOES OF McMARTIN

            If these allegations are true, then the tactics are frighteningly similar to the widespread badgering of children during the wave of hysteria over alleged “mass molestation” at day care centers which swept through the country during the 1980s; the McMartin Preschool being the most notorious case.  Nearly every conviction in these cases ultimately was overturned – often because tape recordings revealed how children had been badgered and coerced.  (Sadly, with the passage of time, those abuses are being forgotten and, in some cases, starting to be repeated.)

            In the Oregon case, the family alleges that the illegal, warrantless interrogation set off a cascade of other errors, though it is not clear if the Supreme Court will be reviewing those as well. [UPDATE: The Supreme Court will review only the issues surrounding the initial interrogation of the child.  That's good news - it means the Court of Appeals' excellent ruling on the subsequent issues discussed below is not being challenged.  Now the question is whether child welfare agencies in Oregon, California and the other western states where the ruling is binding will, in fact, obey the law.]

         

            ●After the interviews, the caseworker went to the mother and said she had to kick Dad out of the house during the investigation or he’d take away the children.  Mom says she told the caseworker this would be difficult for her but she’d do it.  The caseworker went to court and claimed Mom said exactly the opposite.  It appears somebody lied – and once again there is no tape recording.

            ●Then the caseworker ordered the nine-year-old and her sister to undergo sexual abuse examinations at a place called the KIDS Intervention & Diagnostic Service Center.  In other words, the children were stripsearched, had their genitals photographed and so on.

            Mom wanted to be with the children to comfort them.  But, in what the family alleges was a violation of the mother’s – and the children’s  - Fourteenth Amendment rights, the caseworker banned mom not only from the room, but from the entire building.  (On this, it appears, there is no dispute.)

            In an affidavit, the child says:

“I wish my mom could have been there. I felt very scared and alone . . . . [T]hey looked all over my body, and it was very uncomfortable.”

And, indeed, the 9^th Circuit, at least, has recognized as much.  Citing a previous decision by the same court, this decision declares that:

“children have a … right to the love, comfort, and reassurance of their parents while they are undergoing medical procedures, including examinations — particularly those ... that are invasive or upsetting. The interest in family association is particularly compelling at such times, in part because of the possibility that a need to make medical decisions will arise, and in part because of the family’s right to be together during such difficult and often traumatic events.”

The KIDS Center assessments involved the visual inspection and photographing of the children’s genitals. This process could certainly be emotionally traumatic to a young girl. …The children’s right to their mother’s comfort and their mother’s right to provide such comfort were thus at their apex. [Emphasis added.]

            Ultimately the KIDS center said it “could not determine” if the children had been abused.  (Some “experts” have a policy of never saying there was not abuse, instead declaring either there was abuse or it’s undetermined; I don’t know if the KIDS Center has such a policy.)  After about three weeks of foster care, the children were returned home.

It is not clear where the father was then or now.  The decision notes that he accepted a plea deal in connection with alleged sexual abuse of another child. (He maintained his innocence, but acknowledged there was enough evidence such that a judge or jury could convict).

            The KIDS Center report also said they worried that the nine-year-old might have recanted her claims “in an attempt to expedite her return home.”

            If so, then that, too, is DHS’ fault.  The agency undermined its own investigation by removing the children.  Had they simply acted to expel the alleged abuser from the home, and never placed the child in foster care, then the child might have been more willing to “disclose” abuse, if indeed there was any.

THE McVEIGH STANDARD

            You can bet that DHS and its allies will pull out all the stops in trying to scare the Supreme Court into overturning this ruling. They will try to paint a picture of investigators hamstrung by supposedly having to have alleged abusers in the room when children are interviewed or having to get their permission to interview a child.

            Neither is true.

            The court ruled only that DHS is subject to the same limits imposed on police when they are hunting down a child murderer. – like, say, Timothy McVeigh, the terrorist who blew up the federal building in Oklahoma City.

            In the process, he blew up a day care center, killing 15 children; four more died elsewhere in the building.  In order to track down, capture and develop evidence needed to convict McVeigh, the FBI needed to search a car he used, his father’s home and his sister’s home.  In every case, they did what the Constitution requires – they got a warrant first.  (And, by the way, this isn't the only time the government obeyed the Fourth Amendment even in its pursuit of terrorists.)

            So what the U.S. Supreme Court really will be deciding in this case is whether a young child who might be traumatized by an interrogation, stripsearched and undergo an even more traumatic medical examination has as much protection under the U.S. Constitution as did Timothy McVeigh.

            If the Supreme Court says yes, child welfare agencies still will have the right to interview children out of sight of the parents and without getting their permission.  All they have to do is call up a judge and explain why there is “probable cause” that the child has been harmed or is at risk.  They don’t have to wait for the parents to mount a defense – they don’t even have to go to court in person.  Indeed, the great irony in this case is, had DHS simply asked for a warrant, they almost certainly would have gotten one.  In this case there was, indeed, enough reason to suspect abuse to warrant questioning the child (though not badgering her, as she alleges).

            Furthermore, there is always an exception under the Fourth Amendment for “exigent circumstances” – meaning, in child abuse situations, the child is in imminent danger, or the family might flee, for example, and there is no time to get a warrant.

            In this particular case, however, three days passed between the receipt of the report and DHS showing up to interview the child – so it would appear the circumstances were not “exigent.”

            Had DHS simply agreed to abide by the Fourth and Fourteenth Amendments, it could have taken the Oregon taxpayer money it is spending litigating this case all the way to the Supreme Court and spent it on something more useful.  I’m sure the legal fees would more than equal the cost of, say, a cheap little tape recorder for every DHS caseworker.

            In short, there is nothing in the Fourth Amendment of the Fourteenth Amendment that stops DHS and its counterparts around the country from protecting children – at most, these Constitutional protections may curb DHS’ power to traumatize the children it is supposed to protect.

UPDATE: In the days since this first was posted, the family victimized by Oregon DHS has retained NCCPR's volunteer Vice President, Carolyn Kubitschek, to argue their case before the Supreme Court.

Worse than stealing candy from a baby

            It sounds like something out of a bad melodrama:

            A child is placed in foster care, but before he can be reunited, his parents die.  As with many other children in that situation, he is entitled to Social Security “survivors” benefits.  But, being a child, the checks can’t simply be sent to him.

            Were the child living with, say, a grandparent or an uncle, that adult guardian would receive the checks and be responsible for spending it on the child’s behalf.  They might well put it away for the child’s college or some other future expense.

            But when the child is in foster care it is common for state and local child welfare agencies to rush forward and say to the Social Security Administration, in effect: “Just send the money to us.  Of course you can trust us.  After all, we’re a child welfare agency.”

            The agency then loots the money, sending it straight into its general fund to help pay to throw some other child into foster care – or for anything else it wants to do.

            Not only does this happen, it’s actually the norm for the relatively small proportion of foster children who qualify either for survivors or disability benefits from Social Security.

            And, believe it or not, under some circumstances, at least some of this cash grab is legal – the U.S. Supreme Court said so.

            In 2007, Rep. Pete Stark (D-California) introduced legislation to try to stop child welfare agencies from stealing foster children’s money.  But he ran into a wall of opposition from the foster-care industrial complex. 

The Child Welfare League of America opposed anything that would take money from its member agencies.  And the Children’s Defense Fund, whose slogan should be “leave no dollar behind” opposed it, too, apparently on the theory that the child welfare system does such a wonderful job on behalf of all foster children that it would be a shame if it lost any of its desperately-needed money – even the money that comes from foster children being forced to subsidize the system.

            But there are many reasons why this practice probably is not just unconscionable, immoral, and just plain evil, but also illegal.  And some of those grounds are the basis for a lawsuit from Baltimore.  The University of Baltimore Civil Advocacy Clinic is co-counsel for a former foster child suing the Baltimore County Department of Social Services.  Their press release tells the story well:

CHILD WELFARE AGENCY SUED OVER TAKING FOSTER CHILDREN’S ASSETS

BALTIMORE, MARYLAND, October 11, 2010 – The Baltimore County Department of Social Services (BCDSS) has secretly taken the only asset left to an orphaned foster child by his deceased father. 

In a lawsuit filed by the University of Baltimore Civil Advocacy Clinic and a Washington D.C. law firm, Alex M. alleges that BCDSS and the Maryland Department of Human Resources secretly applied for Social Security Old-Age, Survivors, and Disability Insurance benefits (“survivor benefits”) on Alex’s behalf when his father died, and took the money for the state’s fiscal self-interests rather than for Alex’s benefit.  Alex appealed a judge’s dismissal of the lawsuit, and an appellate brief has just been filed on his behalf in the Maryland Court of Special Appeals.

Alex was taken into foster care at age 12 when his mother died, and his father died soon after.  Alex never knew his father left him with an entitlement to survivor benefits, because BCDSS never told him.  BCDSS never told Alex it applied for the benefits, never told him it sought to become his representative payee to gain fiduciary power over the funds, and never told him it was routing his money into state revenue.  In fact, notices were sent by the Social Security Administration, intended to ensure Alex was aware of BCDSS’s actions, but they were received by BCDSS itself – and the agency never shared the notices with Alex.  Alex’s complaint alleges that while BDCDSS was taking his money, he was shuffled between over 20 different placements and was not provided adequate care by the agency – and he left foster care penniless. 

The agency sought to dismiss the lawsuit by arguing Alex’s claim should have been filed within one year of when the agency began taking his funds, although Alex had no knowledge of the agency’s actions.  Also, the agency argued that its practices of taking foster children’s assets are appropriate to reimburse state costs – although foster children have no statutory obligation to pay for their own care.  

An appellate brief has just been filed on Alex’s behalf by Professor Daniel L. Hatcher, who teaches in the University of Baltimore Civil Advocacy Clinic, and an amicus brief has been filed in support of Alex’s appeal on behalf of Maryland and national child advocacy organizations.  According to Hatcher, who also published a law review article and has testified before Congress regarding this practice, “the actions of BCDSS are unfortunately similar to those of foster care agencies across the country – converting foster children’s assets into state revenue, rather than using the funds to actually help the children.”

The lawsuit, and now the appeal, argue that BCDSS’s actions are unconstitutional, violate the Social Security Act, and violate the agency’s inherent fiduciary duty to serve the best interests of foster children.

Daniel L. Hatcher is an associate professor of law at the University of Baltimore, and he teaches in the Law School’s Civil Advocacy Clinic, in which law students and their faculty supervisors help low-income individuals and community organizations that could not otherwise afford legal representation.  The appellate brief and other court papers are available on request, and Hatcher’s law review article on this subject is available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=942007

Foster care in New York City: Another pol tries to exploit a child abuse tragedy

            A month ago on this Blog I wrote about the first child abuse death in several years to get significant media attention in New York City.  I concluded that post by noting that even before this tragedy the Commissioner of New York City’s Administration for Children’s Services (ACS), John Mattingly, had rolled back almost all the gains made before the last high-profile case, the death of Nixzmary Brown in 2006, and added:

The only thing to be determined now is whether this latest tragedy will set off another surge in needless removals of children, make things even worse, and jeopardize what little progress still exists.

            Last week, that surge became more likely.  Another politician rushed to exploit the tragedy.  The Brooklyn District Attorney, Charles Hynes, grabbed himself a headline and a chance to bask in the glow of contrived righteous indignation.  In the process he almost guarantees more tragedies.

            In a move that may be the first of its kind, ever, and certainly the first in the memory of anyone in his office, Hynes is investigating not just the parent accused of abusing the child, but also ACS and an outside contractor who handled the case.  A  New York Times story called it “a rare and wide-ranging criminal investigation…”

            As the Times reported, Hynes

cited the Brown case in making his decision to order the investigation. “Given the history of the Nixzmary Brown tragedy and the city’s failure to protect that child, I am sufficiently troubled enough by the death of Marchella Pierce to find out why she died,” Mr. Hynes said.

            Yet Hynes didn’t do this in the case of Nixzmary Brown herself, even though she, too, lived, and died, in Brooklyn.  And, of course, he didn’t do it for any of the scores of children previously known to ACS who died in the intervening years.  Why not?  Could it be because the media didn’t pay much attention to all those cases either?

All of this means that, if caseworkers weren’t already terrified of what ACS itself might do, now they know that they face possible criminal prosecution if they screw up and leave a child in a dangerous home.  But they can take thousands of children needlessly from everyone they know and love, consign them to the chaos of foster care (and the high risk of abuse in foster care itself) bounce them from foster home to foster home and expel them years later, unable to love or trust anyone, and while the child’s life has been destroyed, the caseworker is safe.

It’s not as if they can count on Mattingly to protect them from being scapegoated.  He’s already thrown two caseworkers involved in this case under the bus; suspending them without pay. 

They may, in fact, belong there.  I don’t know.  There was a time when I felt I could trust John Mattingly to make a fair judgment in these situations; that is no longer the case.

But regardless of whether those caseworkers should have been disciplined, the action reeks of hypocrisy for another reason, one cited by Mike Arsham, executive director of New York’s Child Welfare Organizing Project in recent testimony before the City Council.

Top ACS officials recently botched the process for awarding hundreds of millions of dollars in contracts for services to help troubled families.  It’s all very arcane, thanks to a process Arsham calls “the most opaque and unaccountable of any in memory.” But the bottom line is that it was a screw-up of truly monumental proportions – comparable in the child welfare world to how Michael Brown of FEMA responded to Hurricane Katrina.  But as Arsham points out, the managers responsible for these blunders “which devastated the entire Preventive Service system, potentially endangering thousands of children, have not been held comparably accountable.”

Frontline workers know all this, of course.  And they are rational beings.  So it's likely they will behave rationally and, once again, embrace a take-the-child-and-run approach – leading to another explosion in removals of children, even as children continue to suffer from the surge in removals following Nixzmary Brown’s death, a surge that was only beginning to ease in the past year or so.

Meanwhile Mayor Michael Bloomberg reaffirmed his support for Mattingly.  According to The Wall Street Journal, Bloomberg said that Mattingly is “the best this country has to offer. Every other city would love to have this guy,”  (Of course, the fact that Mattingly stuck to blaming his frontline workers, and defended what Arsham points out are the deepest cuts to preventive services in ACS’ history, probably helped Mattingly win the continued favor of his boss.)

There was a time when Mattingly was, indeed, the best the country had to offer.  But not anymore.  The latest example of who gets hurt by his failure, - in this case a five-year-old boy - can be seen in this story from the Daily News.  As you read it, recall that Mattingly had promised to reform the way ACS responds to “educational neglect” cases, and then reneged.

Best practice in child welfare has passed John Mattingly by; now, he holds back progress at ACS.   Running a large child welfare agency is an extremely difficult job; very few people can do it well.  But there are better leaders in the field today.  Maybe the Mayor should start seeking them out. 

GUEST BLOG: “asinine interference [is] another thing altogether”

Here is one more response from the comments posted to the New York Times website, reacting to Chris Gottlieb’s excellent essay on the Times’ “Motherlode” blog .  As with a previous guest blog, I’m struck as much by who wrote it as by what is said:

Mississippi prosecutor

Mississippi

August 28th, 2010

12:24 pm

Strangers, however well-meaning, are still strangers to you, your child, your family situation. So, unless and until they walk in your shoes, how can it possibly be appropriate to tell a mother she is reading a newspaper improperly and may damage her baby's eyesight? Collective responsibility (i.e. "it takes a village") is one thing - asinine interference, another thing altogether. As for the judge who ordered the mother to take her child to the park every day, it would be interesting to know how many days, in his entire life, he ever took his own children - to the park or anywhere else.


TOMORROW: MORE ABOUT THE RETREAT FROM REFORM IN NEW YORK CITY, AND HOW ANOTHER POLITICIAN IS MAKING IT WORSE.

Dept of DUH: Big new study finds CPS doesn’t work

            Brace yourselves: this is bound to come as a shock.  A big new academic study, published in the Archives of Pediatrics and Adolescent Medicine finds that when you send a child protective services investigator into a home where there’s already a lot of stress simply because the family is poor and then pull the children aside and ask traumatic questions, possibly throw in a stripsearch, and inspect every nook and cranny of the home to see if it passes some caseworker’s white glove test – it doesn’t make things better, and sometimes makes things worse.

            They had to do a study to figure this out?   In fact, as I told Time magazine’s Healthland Blog, this study simply confirms what NCCPR has been saying for years: Child Protective Services won’t be effective until it becomes Child Poverty Services. 

            But contrary to what one of the study authors suggested this morning on WNYC public radio, that doesn’t mean you have to eliminate poverty to eliminate child maltreatment – though whoever does the first will come closer than anyone else to doing the second. You can make enormous strides simply by ameliorating the worst effects of poverty. Some examples are in our publication Thirteen Ways to do Child Welfare Right. (The WNYC interview is worth listening to for the comments of the other guest, Mike Arsham, executive director of New York’s Child Welfare Organizing Project.)

            Of course, the scenario I described above in which the investigator interrogates, stripsearches and then goes away, is far from the worst that CPS can do.

            In other cases, the parents will be forced to jump through a series of hoops either to keep their children with them or to get them back.  It’s almost always a cookie-cutter “service plan” almost always requiring lots and lots of “counseling” and “parent education” while the actual problems of poverty are ignored.  So the “services” only add more burdens to this family.

            At worst, of course, the caseworker leaves with the child, throwing that child into foster care, and probably doing at a minimum, serious psychological damage to that child.  Then, if the child is returned, the family has to heal from this, while it is still just as poor and just as stressed out as it was in the first place.

            So why, exactly, is anyone surprised that this doesn’t work?  It is a testament to the love and resilience in many poor families that only one of the many variables measured in this study got worse.

A FEEBLE DEFENSE OF CPS

            One of the more feeble attempts to defend CPS came from one Janice Warren, DSW

at the University of Virginia in Charlottesville, who told MedPage Today:

"Many children are taken out of very dangerous living situations permanently based upon investigations conducted by CPS.  CPS serves an essential front line of protection for the most vulnerable children in our society,"

            In fact, very few of the 250,000 children taken from their parents every year are taken from “very dangerous living situations.”

           

            That is clear from the results of many other studies, most notably two that compared more than 15,000 typical cases seen by CPS workers.  Those studies found that children left in their own homes typically fared better even than comparably-maltreated children placed in foster care. That was true even when CPS agencies provided families with little or no help. 

            In other words, when CPS traumatizes a family and then goes away, it doesn't do any good.  When CPS traumatizes a family and compounds the trauma with needless foster care, CPS goes from doing no good to doing a great deal of harm.

That doesn't mean no child ever should be taken from his parents; it doesn’t even mean CPS should be abolished.  We need an agency to protect the relatively few children in real danger.  Rather it means that foster care is an extremely toxic intervention that must be used sparingly and in very small doses.

It also means that the threshold for initiating an investigation should be higher than an anonymous call to a child protective hotline.  After all, if a big study of the fire department found that, after they left a house, it almost always still was on fire and sometimes the fire was worse, wouldn't we at least try to do more to curb false alarms?

SUGGESTIONS IN AN EDITORIAL

            The study was accompanied by an editorial which recommended some solutions.  The editorial argued that law enforcement should handle allegations of “abuse” on grounds that all abuse is a criminal act, and public health nurses should investigate “neglect.”

            But there are problems with arbitrary distinctions between abuse and neglect.  For starters, you’re going to ratchet up the largely pointless sideshow debate about corporal punishment if you start sending the cops in every time a parent is accused of spanking a child too hard.  Conversely, though they are very rare, there are forms of neglect, like deliberately starving a child, which are criminal – and much more serious than some forms of abuse.  And what do we do when there are allegations of both, either against the same child, or even an allegation of abuse against one child and neglect against a sibling?

            As for turning over some cases to law enforcement, nearly a decade ago, the State of Florida asked County Sheriffs departments to take over the investigative function of CPS workers.  A few counties agreed.  But nothing changed.  The Sheriffs investigators made the same mistakes as the CPS workers, and rates of child removal generally didn’t change. 

            But there is a better way to achieve the goals the editorial is getting at: “Differential response” in which when the allegation of maltreatment, whether abuse or neglect, is less serious, the response is an offer of voluntary help.  Differential Response is discussed in this previous post to this Blog.

Differential response is somewhat different from what the editorial proposes.  The editorial proposes using public health nurses, apparently based on the Nurse Family Partnership program.  That is a very good program, but it is a primary prevention program, and it is strictly voluntary.  In the cases discussed in the editorial, there’s already been a report to a child protective hotline, and it is not clear if the editorial contemplates families having a right to say “no” when the public health nurse comes to the door.

ERRORS IN THE ARTICLE

            There also are some disturbing errors in the article itself.

            ●Right at the outset, the article declares that “A CPS investigation, regardless of outcomes, signals a household at risk.”  No, it doesn’t.  It might mean the household is at risk, it might not.  Given how easy it is to start an investigation it may just signal a household being harassed by a neighbor or a spouse harassing a spouse.  Given the way calls to hotlines spike after a high-profile case is in the news, it might simply be that there was such a case in the news, and some well-meaning neighbor, or someone who saw the family in a store and didn’t like what he saw, overreacted.

            Indeed, this University of Minnesota study (another study showing that comparably-maltreated children fared worse in foster care than when left in their own homes) also suggests that there may be very little if any difference between the impoverished families who come to the attention of CPS via neglect allegations and those who don’t.  It may be little more than random chance.

            ● There also is a claim that “Family preservation … services after investigation are not associated with reductions in repeat maltreatment or foster care placement.” That claim is flat wrong.  Indeed, few interventions have a stronger “evidence base” than real Intensive Family Preservation Services programs.  That evidence of success is summarized in our Issue Paper on that topic.

That the claim of ineffectiveness even is still around reflects the persistence of bias in child welfare scholarship discussed previously on this Blog here and here.

Just what child welfare needs: One more conference!

If there is one field that is over-conferenced, it’s child welfare.  Occasionally, someone comes up with a conference in which the information is genuinely new and useful.  But  I doubt you could throw a dart at a calendar without hitting a date that includes some kind of conference (or worse, a “webinar”) somewhere in the country where all the same people gather to say all the same things.


In an age of e-mail, websites, Google and amazingly fast access to information, the typical conference should be going the way of the dinosaur.  But then, so should residential treatment centers, and we know how long that’s taking.   I take great pride in the fact that, in 11 years, NCCPR has sponsored only one conference – and that was specifically for the people left out of all the other conferences.

                So guess what a top priority is for the Child Welfare League of America, the giant national trade association for public and private child welfare agencies: Yes, another conference!

                But this would be no ordinary conference.  This would be a White House conference, something that used to occur every decade or so.  And we all know that White House conferences are to conferences as, say, a Mayoral Interagency Task Force is to a plain old, ordinary Interagency Task Force.

                Of course, the real difference between a White House conference and a plain old conference is that you get to meet in, I assume, the East Room, and get your picture taken with the President after he makes some opening remarks.

                After that, it’s down to the usual keynote speeches, “breakout sessions” and plenary sessions where participants will learn that:

●        Children are not a priority because they don’t vote.

●        Prevention costs less in the long run.

●        We can pay now, or we can pay later.

●        It takes a village.

And, the real shocker:

           ●    Children are our future.

                So, all in all, I think CWLA’s proposal is – a great idea! In fact, I wish them all the luck in the world in getting their White House conference.

                Here’s the way I figure it:

                CWLA already has expended a lot of time and effort trying to get this conference.  Imagine what happens if they succeed:  Just think of all the committees, subcommittees, steering committees and coordinating committees.  All that time planning an agenda, lining up speakers, thinking up ideas for panels.  Maybe there’ll even be focus groups to solicit “input” from “stakeholders.”  In other words, it will keep the folks at CWLA and like-minded groups very, very busy.

                And the more time they waste on the conference, the less time they’ll have to do actual harm – like undermine efforts at real reform of child welfare financing. 

                So by all means, let’s have a White House Conference on children’s issues.  In fact, let’s do it every year!