The program tries to save itself with fear and smear tactics. And the program director knows better.
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| Some CASA programs still call themselves "a child's voice in court." But often the CASA model of representation actually silences the child (Photo by Elvert Barnes) |
Second of two parts. Read
Part One here.
In the previous
post to this blog, I described a
new, large-scale analysis of data from what is probably the nation’s
premier CASA program – the one in Florida (where it goes by the name Guardian ad Litem (GAL) program).
The study found that, even after pouring $600 million in
taxpayer funds into the program over 15 years, using the criteria the program
itself uses to claim success, there actually is no evidence that the program
does any good – and some limited evidence that it might be doing harm.
The study was done by Prof. Robert Latham,
associate director of the University of Miami School of Law Children and Youth
Law Clinic. He is not a CASA-basher. On the contrary, he worked in the Florida
GAL program, began his excellent blog with posts defending that program and, as
recently as 2016, received the program’s Excellence
in Advocacy award.
But what started him wondering about the program’s
effectiveness was the depths to which it has sunk to try to keep itself in
business and prevent the establishment of a better way to represent
children. The “better way” part is my
conclusion. Prof. Latham sees room for both.
The two methods generally are called “best interests”
representation and “client-directed” representation, sometimes called “expressed
wishes” representation.
In the “client-directed” model, the lawyer does what any
other lawyer would do: advocate for what his or her client wants. In the so-called “best interests” model
preferred by CASA, the lawyer advocates for whatever the CASA happens to think
is in the child’s best interests. If the
CASA and the child disagree, the child is effectively silenced. (And that makes it particularly galling that
some CASA programs still
claim to be “A child’s voice in court” – often they are anything but.)
And now we know that the Florida CASA program (again, they
call it a GAL program) will use all sorts of fear and smear to keep it that
way. In one email, the program’s
leadership declared that the goal of those who favor allowing children to have
someone in court fighting for what they actually want
“… is not improving safety or representation of children, but rather to change the manner of representation so that all children – even newborns - - have expressed wishes representation, including attorney-client privilege, confidentiality, and the child directs the lawyer to the goals of the advocacy.”
Translation: How horrible! Some people want to give children
actual legal rights! We can’t let children have a real voice in court!
But here’s the kicker. The email continues:
Under this scheme, children could be hurt because, as we know, most children want to return to their abuser.
As Latham aptly puts it: “I thought we were past the days
when … program leadership and their friends accused children’s attorneys of
wanting kids to die. And yet here we
are.”
Oh, and that line about “even newborns” is just another
sleazy scare tactic. The American Bar Association offers
exhaustive guidance concerning how to deal with any situation where a child
really can’t express a preference – and where an expressed preference can cause
the child “substantial harm.”
Then came what Latham describes as “Another letter, another
claim that attorneys for kids will stand by as children are murdered in the
damn streets.” That email concludes:
For those children who are able to understand how to direct an attorney, most will make decisions to return to their traumatic situation, which is clearly not in their best interest.
There are several specific problems with these emails:
● First, most children are not taken from “abusers” in the
first place; they are taken from parents accused of neglect, which often is confused with poverty.
● Second: Whether its abuse or neglect, the operative word
is accused. Children can be trapped
in foster care for months before a court ever decides if they actually were
abused or neglected or not. It speaks
volumes about the Florida CASA program that their email effectively adopts the
position that all families are guilty until proven innocent.
● And third, as Latham points out: “Kids don’t decide to go home – judges have to order it.” [Emphasis in original.]
It should be obvious that the best way for a judge to
actually decide what to do is when all sides have someone making the best
possible case for what they want.
These emails aren’t just damaging concerning the specific
issue of legal representation for children. They contribute to the climate of
fear that has led to foster-care panic in
Florida. Indeed, these memos sound like they could have been by the Miami Herald, whose demagoguery about child welfare
derailed reform that was making children safer and plunged the Florida child
welfare system back into its usual state - chaos.
A hypothetical case …
Latham does a good job of explaining the differences in the
two approaches in a hypothetical case in which the child is in foster care and
wants to go home:
In the best interest model, the GAL investigates the situation and comes up with a position. If the GAL decides that reunification is not their preferred path, then the GAL attorney makes no further efforts and waits for the parent to fail. Alternatively, a GAL could actively thwart the family’s efforts at reunification by filing motions to limit visitation or to pile on extra services.
Notice how Latham understands that “extra services” can
actually be a way to undermine families, by forcing them to jump through a
bunch of additional, meaningless hoops – something to keep in mind when CASA
programs claim they’re successful because families supposedly get “more
services.”
Latham continues:
In the direct representation model, on the other hand, we start with the position of the child. If the child wants to pursue reunification, then the attorney must take steps to try to make reunification possible. The law requires the home to be safe, so the attorney aims to make it so. That could include seeking services for the parents, holding the Department [of Children and Families] accountable if it doesn’t make reasonable efforts, filing injunctions to get abusive people out of the home, and a lot of other efforts to try to meet the legal standard.
The client-directed attorney must also communicate with her child client and counsel her about the likelihood of success and other options. Maybe the child changes her mind about going home at some point; maybe the parent is never able to create a safe home. The client-directed attorney may never achieve the client’s goal and reunification may never happen.
The difference in the two models is that the directed attorney’s efforts are proportional to the child’s desire to go home, while the best interest advocate’s efforts are proportional to their own value system and beliefs (which none of the other parties or even the judge has any way of really exploring).
The attorney providing direct representation to a child cannot lie to a judge, withhold information on known harms in a way that is tantamount to fraud on the court, or pick up children and throw them into burning houses. If a child’s attorney does any of that, please report them to the Bar.
…and a real case
But one doesn’t need a hypothetical to see the harm in the
CASA-knows-best approach. The Washington
State Supreme Court recently upheld a state law that says judges have
discretion to give children their own lawyers, or not, as they see fit. In
her dissent, Justice Mary Yu cited a real case. As I explained in a
previous post to this blog:
The child, known as E.H., is now about ten years old, more than old enough to make his preferences clear. His mother is in jail, but will be released next year. Justice Yu writes:
E.H.'s position was (and remains) directly at odds with the position of his CASA and the State: E.H. wants to reunite with his mother, while the CASA and the State argue that termination of parental rights is in his best interests. When the court denied appointed counsel … E.H. was erroneously deprived of his right to be heard.
Although E.H. cannot reunite with his mother right now, she is scheduled to be released in July 2019, when E.H. will still have almost half of his childhood ahead of him. In the meantime, he is in a stable placement with foster parents who are willing to serve as long-term guardians for him. He has maintained a close relationship with his mother, and she has made every possible effort to remain an important part of his life. …
E.H. thus has a clearly stated position favoring reunification, and there is no apparent reason why that outcome is not a reasonable possibility in accordance with the law of this state. [Emphasis added.]
Justice Yu goes on to dismantle the first line of defense
used by CASA to justify refusing to fight for what the child wants, which boils
down to “Well, we do mention to the judge what the child
wants”:
The trial court noted that the CASA, though "somewhat leery," reported E.H.'s stated position to the court in accordance with her statutory duty. … However, the position of the State and the CASA, that termination is in E.H.'s best interests, directly conflicts with E.H.'s stated desire to reunite with his family.
The CASA is required to represent and advocate for termination in order to comply with her statutory duties, but termination and reunification are mutually exclusive outcomes. … No one could possibly advocate for both at the same time. The CASA's assessment of E.H.'s best interests therefore make it impossible for her to represent his position.
It gets weirder.
Justice Yu points out that the CASA actually had a lawyer to argue for
the CASA’s position – that E.H’s rights to his own mother should be terminated
-- yet E.H. had no lawyer to argue for what he actually wants - reunification. The same thing happens in Florida – and the
Florida GAL program wants to keep it that way.
The snide, smug assumption implicit in the Florida GAL
program memos, that kids don’t know what they’re talking about when they want
to reunify and so should be ignored, is contradicted by the facts of this case –
and every other case in which a child welfare agency was wrong to remove a
child and wrong to keep the child in foster care.
The First Star factor
Even all this wasn’t quite enough to prompt Latham to do his
study. It was the fact that the Florida
GAL program also engaged in rampant statistics abuse.
There is a group called the “First Star Institute” which
periodically puts
out reports grading the states on how well they provide legal
representation to children. Their
criteria include whether children get lawyers and, if so, if those lawyers are
required to fight for what the child wants.
I’ve never thought these reports were terribly useful for
one reason: They grade states on what their laws require – but in child welfare
that often is very different from the facts on the ground. After all, for nearly 40 years federal law
has required states to make “reasonable efforts” to keep families together – and we all know how that’s worked out.
But the Florida GAL program has attacked the First Star
report in a way so intellectually dishonest that it prompted Latham to act.
Here’s what the program did: They pulled out a few standard
outcome measures and said Look! Here are some states that have client-directed
representation and they’re even worse than Florida! As Latham put it: “Cherry picking some states
that suck worse than Florida and happen to be in a report you don’t like is not
a validated statistical method.”
But, hey, if that’s the way you want to do it, Florida GAL
program, I’ll go for it. Or, to quote
one of my favorite lines from Inherit the
Wind, “We’ll play in your ballpark, Colonel.”
The Florida GAL program cites some measures by which New
York State is worse than Florida (and I'll come back to that.) But on one of the most important measures of
all, the rate at which children are torn from
their parents, Florida is nearly twice as bad as New York. And for reasons I hope are obvious, anyone
who claimed Florida children are twice as safe from abuse as New York children
would be laughed out of the room. By
your own logic, Florida GAL program, that must be your fault!
The proportion of children trapped in foster care on any
given day is more than 20 percent higher in Florida than in New York. By your own logic, Florida GAL program, that
must be your fault!
In California, only about ten
percent of children have a CASA. In Florida it’s much higher. And Florida
takes away children at a rate 63 percent higher than California. By your own
logic, Florida GAL program, that must be your
fault! (There actually is
evidence that more CASA = more needless
foster care. But this isn’t it.)
Even where other states do look worse, there is less to it
than meets the eye. Yes, it’s true, the
average length of stay in foster care is longer in New York than in
Florida. Of course it is. New York State, and especially New York City,
are far more careful about taking children only when its genuinely necessary –
although New York still makes plenty of mistakes in that regard. So in New York, it’s far more likely that the
foster children really need to be in care and the children and families have
more severe problems. So of course they’re
going to be in care longer.
The various local governments that run child welfare in New
York easily could make their average length-of-stay numbers look better: They
could just rush out and take, say, 50 percent more children, then return them
in 30 days or less. The average length
of stay would plummet. (And, sure enough, in
still another fascinating post, Latham notes that Florida already holds
thousands of children in foster care for 30 days or less.)
It was the misuse of the First Star report that pushed Latham
to act. Because, as he put it, the
latest fear-mongering email from Florida GAL
went and dragged math into it. … The email suggests that, based on the outcomes, the GAL Program is provably, mathematically superior to kids having attorneys represent them directly. That felt like a challenge. If it’s provably true, then let’s try to prove it.
So he did. In fact, he did a much more sophisticated version
of what the Florida GAL program itself did: He compared outcomes in regions
where the rate of GAL representation is high to the rate where GAL
representation is low. The results are
discussed in detail in the previous
post to this blog and in much more detail Latham’s
own post.
But it boils down to this: When Latham played in the Florida
GAL program’s ballpark, he struck out the side.
In search of an evidence-based alternative
But amid all the fighting over “best interests” vs. “client-diected”
representation for children let’s not forget that there is another alternative
that really is evidence-based. A comprehensive, large-scale peer-reviewed
study using one of the finest methodologies in research - propensity score matching – found that there
is a great way to reduce foster care without compromising child safety: Provide
high-quality interdisciplinary representation to parents.
The evidence is in: Florida would get far better results for
children if it took the nearly $55 million a year it spends on its GAL (CASA)
program and spent it instead of this model of family defense. And Congress should follow suit. The same Congress that makes it almost
impossible to fund prevention programs under the Family First Act because of
absurdly-high standards for declaring a program “evidence based” is glad to
lavish funds on CASA – for which there is no evidence of any good, and some
evidence of harm. I would argue, a lot of
evidence of harm. Congress should divert all CASA funds into
evidenced-based prevention and family preservation programs.
People who know better
Robert Latham takes no joy in any of this. Indeed his
post is called “A Reluctant Post About the Guardian ad Litem Program: Its
Ethics, Efficacy, & Future.” As he
explains:
I worked at the Guardian ad Litem Program and I love the people there. I got started blogging in child welfare through defending the Program against unfair criticism and I still defend them when the criticism is unfair. I will do it again in this post, when appropriate. … Yet, it’s getting harder to ignore the messaging coming out of its Tallahassee office. The accusation that representing kids means blindly throwing babies into unsafe situations is nothing new. I am still sad, though, because I know the people who wrote this letter know better.
I know how he feels. I know one of the people responsible
for the letter too.
The Florida GAL program is run by Alan Abramowitz. During Florida’s all-too-brief era of child
welfare reform, under Bob Butterworth and then George Sheldon, Abramowitz ran
the child welfare division of the Florida Department of Children and
Families. He talked the talk about
family preservation better than any child welfare administrator I know. And the data suggest it wasn’t just
talk. But
it’s stories such as this, from more than a decade ago, which show what a
class act Abramowitz can be when he wants to be.
So to see Abramowitz distributing fear-and-smear memos –
well, sad doesn’t quite cover it.
Because Prof. Latham is right.
Alan knows better.
