Efforts at Reform:
2010 - Where Are We Today?


References



INTRODUCTION

MASSACHUSETTS

It is April of 2010 as Courthouse News Service reports the allegations detailed in a civil complaint filed by Children's Rights in the state of Massachusetts. Named as among the defendants are Governor Deval Patrick, state Health and Human Services Secretary Judyann Bigby, and Angelo McClain, commissioner of the Massachusetts Department of Children and Families. The article explains:

Among the horror stories detailed in the 78-page complaint are those of Dontel Jeffers, who died at 4, allegedly after his foster mother tied him to a radiator and kicked him until his bladder burst; Acia Johnson, who died at 14, allegedly after her mother's boyfriend lit their house on fire; Isaiah Barboza, 4, who was hospitalized for second-degree burns from being scalded with boiling water; and an unidentified 4-year-old, who needed skin graft surgery after his foster mother burned him with a hair-straightening iron.

"The attorneys say children are placed in foster homes that the state fails to monitor, and that this practice has been common for decades," the article explains.

More to the point, the 78-page Civil Complaint notes that: "DCF has not implemented the reforms necessary to remedy the severe and persistent legal violations within its foster care system, despite its longstanding knowledge of these systemic ills."


RHODE ISLAND

"A federal appeals court heard arguments Tuesday on whether to reinstate a lawsuit that alleges major problems with Rhode Island's foster care system," reports NBC affiliate channel 10.

The lawsuit alleged widespread abuse and neglect of children in the state's legal custody. But a federal judge dismissed the case, saying that he didn't believe the children's interests were being adequately represented. The Attorney General's office urged the court to uphold the dismissal.


KENTUCKY

The Associated Press reports that: "A judge has ordered Kentucky officials to release documents related to the death of a 20-month-old boy who was in the state foster care system when he died."

Circuit Judge Phillip Shepherd ruled that the Attorney General's office was wrong when it said that records related to the death of Kayden Daniels were confidential, saying there was no basis for withholding the documents.


COLORADO

"El Paso County will pay $300,000 to the mother of a 2-year-old girl who died in foster care," reported ABC affiliate Channel 7 News of Denver.

Jules Lynn Cuneo, 36, was convicted of child abuse and reckless manslaughter for the child's death. Prosecutors said the foster mother threw the girl across the living room, causing fatal injuries when she hit her head on a coffee table.


OKLAHOMA

"New developments in a class action lawsuit against Oklahoma's Department of Human Services," reports FOX 23 of Tulsa. Attorneys are asking the Governor's office to turn over records of caseworker workloads.

The suit alleges that DHS routinely places abused, deprived and neglected children in "unsafe, unsupervised and unstable situations" where they are at risk of suffering further abuse and sometimes death.


GEORGIA

The Athens-Banner Herald reports that: "New York-based Children's Rights claims in a new report that Georgia has relaxed monitoring and enforcement of the private agencies it hired to provide homes for foster children and that abuse and neglect have risen among foster children in Atlanta."

An Associated Press article issued in April ominously reports: "The state office that oversees Georgia's foster care system consistently excuses serious and repeated rule violations that jeopardize children's health and safety, according to an investigation by The Atlanta Journal-Constitution."

The newspaper found that "fights, sexual assaults, abuse by foster parents, escapes and suicide attempts occur with regularity at many of Georgia's 336 private foster care agencies, according to a review of more than 1,500 state reports and investigations."


NEVADA

Nevada's Newsradio 840 KXNT reports: "The Clark County Department of Family Services is facing a lawsuit over the treatment of 13 foster children in its care. The suit, filed this week in federal court by the National Center for Youth Law, seeks class-action status for all foster children in the county. It accuses the county of failing to provide proper medical care and mental health treatment, and failure to investigate allegations of abuse and neglect."


CALIFORNIA

The Los Angeles Times reports: "Responding to the killing of a 2-year-old foster child this month, Los Angeles County supervisors Tuesday voted to develop an investigations unit with the power to end contracts with troubled foster family agencies such as the one responsible for the child's care."

The paper explains that Viola Vanclief was battered to death while under the care of "an agency with a history of poor supervision and financial mismanagement." United Care, which oversees 88 homes with 216 foster children, "has been repeatedly cited in recent years after caregivers choked, hit or whipped their charges with a belt."


MICHIGAN

Detroit's WXYZ news reports: "For several months, the Action News Investigators dug deep into Michigan's tragically-flawed foster care system. During our investigation, we uncovered the heartbreaking story of a 10-year-old boy who starved to death while a facility banked cash to care for him." The foster home that young Johnny was in raked in about $12,000 a month from the state for his care.

Johnny's mother, Elena Andron, "dedicated her life to caring for her wheelchair-bound son," and she turned to the Michigan Department of Human Services for help, "a decision she will regret for the rest of her life," notes the WXYZ News report.

"The state is quick to take kids from parents and put them in foster care, especially poor parents. The state makes it very hard to get them back. Experts say the state has a financial incentive to keep kids away from their families," the report concludes.


THE STACKED DECK

An article in the News-Enterprise reports on a "Model Court" being established in Hardin County, Kentucky, to "remove the adversarial approach parties assume in family courts."

The change stems from what reporter Bob White describes as "claims of social workers falsifying evidence to paint parents in a negative light," as well as reports of fast-tracked adoptions, ill-conceived terminations of parental rights and retaliation by social workers against parents. "Dozens of parents alleged victimization by systems geared to protect and preserve the family unit, including child protection," White explains.

These accusations found their genesis in a report entitled "the other Kentucky lottery: Child Protection and Permanency for Abused and Neglected Children in Kentucky in 2005," authored by the National Institute on Children, Youth and Family's and Kentucky Youth Advocates.

The report identified three factors that in combination may often serve to "stack the deck" against the most well-meaning and determined of families: (1) very rapid investigations, which may lead to the premature removal of children, (2) the lack of services provided to families, and (3) the sometimes unrealistic case plans developed by caseworkers that included goals that seemed impossible for many families to meet.

These charges led to a follow-up investigation by the Office of the Inspector General, which described a culture that "thrived on the power of controlling certain families, including but not limited to the ultimate exercise of power - facilitating the removal of children from their biological parents and the termination of parental rights."

The OIG report found that "documentation was omitted or added to case files to intentionally mislead the court." In some cases, this was to assure children were returned to their biological parents while in other cases it was reportedly to assure that the Judge would rule for termination of the parents' rights.

"Policy was applied inconsistently in determining whether a child should be removed from the biological parents' home, whether children were placed with a relative, or if siblings were to be separated," the Inspector General found.

"Workers respond aggressively to any perceived challenge to their actions. For example, biological and foster parents complained children were removed from their home because they 'talked back' to the workers," the report explains.

The Inspector General's report explained that: "social service workers have boasted about making it difficult for clients to work with DCBS staff." Beyond that, social service caseworkers "have laughed at parents as they advised them they were removing their children and during the removal process." The report continues on to explain that:

One social service worker struck and cursed a biological parent during a visit with his child. The worker then entered a detailed service recording in the client's file documenting the parent's aggressive behavior, but failing to document her own use of an obscenity toward the client or that she struck him in the chest with her hand.

Some of the caseworkers accused of wrongdoing retired, while others continued to work in other jurisdictions, performing the same duties. Some were reprimanded, with written blemishes added to their personnel files. None, however, were fired.

"None were prosecuted criminally, even though evidence supported claims they had destroyed countless lives and torn families apart without warrant," White explains.


THE TERMINATION

"Bill Mitchell knows how difficult it can be to get your kids out the state's hands. He had to fight all the way to the Michigan State Supreme Court to get his three boys back," explains WXYZ's investigative reporter Ann Mullen.

His boys were living with their mother when they were taken. Mitchell tried to get his boys, but CPS had other ideas. The state asked the court to terminate his parental rights, primarily because of his finances. "I have the right to choose where I want to work," says Mitchell, an engineer who works at Wal-Mart.

A juvenile court judge terminated his parental rights, and, incredibly, the Michigan Court of Appeals upheld the decision. Mitchell, with the assistance of the Parent Representation Project at the University of Michigan Law School, appealed his case to the Michigan Supreme Court, which eventually overturned the rulings, returning his sons to him after three years.

The Supreme Court adopted the dissent in the lower court's ruling, which read in part:

the court was also critical of respondent's choice to work at Wal-Mart rather than seek employment as a chemical engineer. While one may speculate as to whether there are employment opportunities for inexperienced chemical engineers, the sole focus of the court should be whether respondent has any legal source of income, whether that income is adequate to care for the children and whether it will likely be used for that purpose. The fact that respondent could have potentially earned a greater income does not automatically indicate that his income was inadequate.

"It wouldn't have mattered what I said or what I did, they had already determined their course and now we were just going through the motions," says Mitchell, who didn't get a court appointed lawyer until nine months and three hearings into the case.

"He's one of the most outstanding parents ever to have been run through a termination preceding, and if it can happen to him, it can happen to anybody," says attorney Elizabeth Warner.

"Termination of parent rights is very high in Michigan," says Warner. "But it's also very high nationwide and it happened because of some laws that were passed by the federal government and encouraged states to terminate parental rights more often than they used to and promise to send them money if they would terminate rights and have the children adopted."

As few cases rise to this high a level of appeal, for all of his suffering, Bill Mitchell and his three sons may be considered as "fortunate" for having ultimately prevailed.

The problems with legal representation for parents have long been documented. A report issued by the office of the Public Advocate for New York City notes that the "system is now in severe crisis." The report continues on to explain:

The reimbursement rates are grossly disproportionate to the cost of maintaining a law practice; the caseloads are impossibly high; and the investigative, counseling and support services necessary to meet client needs are largely nonexistent. Despite their best efforts, attorneys working under such conditions can provide only the most minimal time and attention to each of their many cases. The result is a system that fails to meet the requirements of the law, undermines the proper functioning of the Family Court, and adds immeasurably to the short and long-term costs of removing children from their homes.

A survey conducted by the Public Advocate's office found "considerable parent dissatisfaction with the quality of their legal representation." Of those surveyed, 56% reported that their attorneys did not return phone calls, 57% reported that their attorneys did not inform them of their legal rights and options, and only 30% reported that their attorneys adequately represented their views in the courtroom. In their comments, many parents implied that they viewed their court-appointed attorneys as part of an uncaring bureaucracy that was biased against them.

The report concluded that legal representation for indigent parents accused of neglect or abuse is at best inadequate, and "neither protects the rights of parents nor serves the best interests of children. It denies parents due process, profoundly disrupts family life, and leads to inappropriately lengthy and costly foster care stays for children."


THE MODEST REFORMS

STANDARDS OF PRACTICE

Some modest progress has been made in addressing some of these deficiences. In August 2006, the American Bar Association's House of Delegates approved Standards of Practice for Parents' Attorneys, making the standards official ABA policy.

In May 2009, the National Project to Improve Representation for Parents Involved in the Child Welfare System held its first ever National Conference for Attorneys Representing Parents in the Child Welfare System. "The conference was an inspirational event at which 240 parents' attorneys took the opportunity to network together and learn from national experts about innovative child welfare law, theory and practice tips. The excitement and momentum of the conference continue to drive innovation and reform as conference attendees take what they have learned back to their home states," the ABA explains.

This year, a number of national organizations are working together to organize the first National Reunification Day on June 19, 2010. The goal of National Reunification Day, according to the ABA, "is to celebrate families and communities coming together and to raise awareness about the importance of family reunification to children in foster care."

The ABA continues on to explain: "Reunification with family is the preferred outcome for children removed from their homes and placed in foster care. Every year, hundreds of thousands of children are successfully reunified with their families. Reunification takes work, commitment, and investment of time and resources by parents, family members, social workers, attorneys, courts and the community. For most children in foster care, reunification with their family is their best option for a permanent and loving home."


THE EVOLVING CASELAW

Challenging the system on Constitutional grounds once children have been absorbed into it has become a matter of routine, as evinced by the many decades worth of consent decrees. Challenging the system on the front end - that is when the caseworker first appears at the door demanding entry - is relatively new. A body of caselaw continues to slowly evolve favoring the Constitution, as the Ninth Circuit Court of Appeals explains in a ruling issued in June of 2009:

The law was clearly established by February 2005 that government officials could not take a child into temporary custody without a warrant absent evidence establishing reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.

"By February 2005, we had applied this principle to find that social workers lacked reasonable cause to take children into custody without a warrant where there was no danger that abuse would occur in the time it would take to obtain a warrant or where there was a significant delay between the investigation and the removal," the Court explained in Springer v. Placer County.

In Walsh v. Erie County, a case decided in 2003, the Court ruled that: "Despite the Defendants' exaggerated view of their powers, the Fourth Amendment applies to them, as it does to all other officers and agents of the state whose requests to enter, however benign or well-intentioned, are met by a closed door." The Court continued on to say that: "Any agency that expects to send its employees routinely into private homes has a fundamental obligation to ensure that those employees understand the constitutional limits on their authority."

In Roska v. Peterson, a case decided in 2003, no immunity was found for caseworkers who entered a home lacking either exigency or a search warrant. Similarly, in Rogers v. County of San Joaquin a case decided in 2007, the Court held: "the rights of families to be free from governmental interference and arbitrary state action" are important, and that "the preservation of the essential privacy and liberty interests that families are guaranteed under both the Fourth and Fourteenth Amendments of our Constitution" are equally as important, hence removal of children without either a warrant or exigent circumstances violates those rights.


OTHER ISSUES REMAIN

PSYCHOTROPIC MEDICATION

An examination of hundreds of court files, prescription records, visits to group homes and interviews with child workers, lawyers, judges and doctors revealed that Californian children in state care "are being drugged with potent dangerous psychiatric medications, at times just to keep them obedient and docile for their overburdened caretakers". That report was issued in 1998. Little has changed since.

Indeed, the National Center for Youth Law recently amended a legal action in Nevada to address this very issue. In its highly detailed civil complaint, the Center explains that as the direct and proximate result of Defendants' policies, customs and omissions: "Plaintiffs have endured repeated failed placements, lack of access to continuous and/or effective mental health care, abuse, and neglect, and have been forced to take numerous psychotropic drugs. As a result of these experiences, Plaintiffs have suffered bodily harm, substantial physical and emotional pain and suffering, humiliation, extreme and severe mental anguish, acute anxiety, emotional and physical distress, and fear and depression, all to their damage and detriment.


RETALIATION

Bill Grimm of the National Center for Youth Law explains that foster parents and private providers, such as group home operators and contract therapists, frequently know more about the children in their care than do agency staff. "They sense the disappointment when the worker who promised to visit the foster child does not show up for the appointment," he writes. These people are "reluctant advocates" for the children whose tragedies they witness for fear of retaliation, as Grimm explains:

It is not fear of losing the monthly income for the care of the child that keeps most from speaking out, but rather fear that a child in their home will be taken away as retribution for their daring to question the authority and judgment of the agency. Regrettably, this fear is often justified.

In 1994, Washington state legislators "heard from a half-dozen foster parents, some whispering through tears, who told tales of caseworkers who threatened, intimidated or harassed them after they made waves in the system," the Associated Press reported.

Retaliation against biological and foster parents continues to emerge as a familiar theme to advocates, and narratives confirming the reality of its existence are to be found concerning many child welfare institutions, whether public or private. As the civil complaint in the Children's Rights action in the state of Tennessee explains: "fear of retaliation by DCS often deters foster parents, pre-adoptive parents and others who provide services to children in DCS custody from advocating for the needs of individual children or complaining when needed services are not provided."

Ultimately, the question boils down to one of whether you can legislate away, privatize away, or for that matter even sue away the pernicious human psychological deficiency that is far-too-often enabled in caseworkers by virtue of the power that they are given to damage children by gleefully removing them from their homes in retaliation for their caretakers having advocated for their needs.


PRIVATIZATION

Privatization was peddled as a panacea sure to cure the ills of the foster care system during the mid-1990s, but some early critics of these efforts in Kansas, where the grand experiment began, suggested during testimony that it only added another cold and impersonal bureaucratic layer to contend with. TC Mosier of United Foster Families for Children addressed the SRS Oversight Transition Committee during hearings held in Topeka in 1997, explaining:

Foster Families have been ridiculed by the contracting agency and its workers. One foster parent was quite direct saying, "the workers seem to forget who knows the children better than anyone else, and when I attempt to share information, recommend, or add lip, I am told to let the professionals do their job." The contracting agency and its staff seem to forget that as foster parents, we have the children daily, weekly, and most often for a long length of stay; they deny the fact that foster care is a significant piece of the puzzle, and when the piece is ignored, decisions are made that can jeopardize the future of the child, thus the children suffer. Foster parents have been told to "stay within their boundaries," yet decisions that have been occurring have definitely had a negative effect on the foster children. One contracting agency have told the foster families, "it is not of your business," when they make recommendations. Foster families have been threatened, lied to, put down, and treated as if our concerns were nothing. Two of the contracting agencies have treated the foster parents as numbers and service delivery components, rather than human beings.

A recent report by the Kansas Joint Committee on Children's Issues describes the privatized system as one in which there are instances when contractors "do not place children with family, are allowed to submit sometimes subjective court reports parents and family of the child are not allowed to see, act in arbitrary ways, do not return children when parents have completed reintegration plans, and don't provide enough meaningful contact between children and parents in their visitation policies."

The Committee received testimony from parents and grandparents of children who had been placed in the foster care system. The committee published what it described as a partial list of their complaints. Among them:

. Grandparents being denied placement of their grandchildren due to their age

. The state making money when children are adopted by non-relatives

. Case managers, caseworkers and other resource personnel not being licensed or trained properly

. SRS and contractors making questionable decisions regarding the children's care and placement

. Children's behavior growing worse in foster care placement

. Children being abused during foster care placement

The committee reqested that audits be conducted, and that they should "examine whether a financial incentive exists for a contractor to keep children in the Foster Care system and, as a result, not return the children to their homes or recommend placement in the homes of relatives."

The committee requested that four bills introduced by various of its members be considered by the Kansas Legislature. These bills include: HB 2461 which would rescind SRS' authority to contract privately for foster care and related services; HB 2511 which would grant SRS the authority to reimburse grandparents sufficiently for providing care for their grandchildren; HB 2512 which would grant courts additional authority regarding placement of children; and HB 2494 which would add restrictions on the courts' authority to remove children from their homes and terminate parental rights.

In his cover letter accompanying the report, 43rd District Representative S. Mike Kiegerl notes: "The process of reforming SRS will take more time and effort; we have just begun. I have requested several audits to determine what value the Kansas tax payer is getting for the $150+ million we're spending on private contractors and to document the financial irregularities in the SRS budget of $1.6 billion."


FALSIFIED RECORDS

The rampant falsification of records remains a significant problem. During fiscal year 2008-2009, over 47 percent of the cases investigated by the Office of the Inspector General of the Florida Department of Children and Families involved accusations of falsification. 62% of all allegations investigated by the OIG resulted in supported findings, and 41.58% of the completed investigations involved law enforcement and/or a State Attorney's Office referral due to possible criminal violations. Among the supported cases identified in the Inspector General's report:

. A Child Protective Investigator falsified documentation within the Florida Safe Families Network

. A Child Protective Investigator falsified documentation regarding a home visit

. A Family Care Counselor of a subcontracted provider falsified a home visit with a child in foster care

. A Child Protective Investigator falsified records in at least four cases

Our survey extends to Wisconsin, where a Racine County child protective service investigator is under criminal investigation for allegedly filing false reports on child abuse cases that he never actually investigated. Todd O'Brien, who had been employed with the agency since 1998, reportedly filed detailed reports that labeled allegations of abuse as unsubstantiated when in fact he never went to any of the allegedly abused children's homes.

To New York City, where 27-year-old Stephanie Sabouni is arrested for falsifying documents in an attempt to cover up her failure to visit children under her supervision. The former educational neglect caseworker altered agency computer records, authorities said, to make it appear that she had visited a child's home when, in fact, she had not.


STRUCTURAL CORRUPTION

The New York State Medicaid Fraud Control Unit recently conducted a statewide investigation of foster care agencies that produced $1,984,800 in restitution. The Unit reached settlements with 42 child foster care agencies for "engaging in practices that resulted in double-billing."

The Fraud Control Unit's investigation commenced in 2007, and by 2009 it had obtained recoveries totaling $2,681,800 from 63 child foster care agencies, according to its annual report.

But that may well be the tip of the proverbial iceberg. In August 2009, the U.S. Attorney's Office for the Southern District of New York announced that Stay Thompson, the former fiscal director of Concord Family Services, a New York City foster care agency, was found guilty of conspiring to commit mail fraud and money laundering.

"The charges relate to a scheme to obtain more than $100,000 worth of adoption subsidy payments from New York City to care for needy children who did not in fact exist," a press release explains. At the time of the announcement, five other individuals had been charged and pleaded guilty in connection with the scheme.

Among the others who'd pled guilty were Lethem Duncan, the Deputy Director of the Payment Services Department of the Administration For Children's Services, and Nigel Osarenkhoe, former Supervisor of Adoptions within the agency's Payment Services Department. To be sure, Osarenkhoe also served on the Administration For Children's Services Quality Assurance Unit.

In addition to managing adoptions and foster care, the Administration for Children's Services jointly operates the city's child care services program with the Human Resources Administration. Auditors recently examined whether their oversight activities were effective in monitoring the health and safety of children receiving care, and whether the program's funds were being spent for their intended purposes.

They found that "94 percent of the random sample of 50 providers had one or more issues of noncompliance with health and safety requirements," according to the Comptroller's office. Auditors could not confirm that services were actually being provided by 14 of the 50 providers, and two of the providers were registered on the New York State Sex Offender Registry.

We travel now to nearby Philadelphia, where a co-founder of a social service agency, Multiethnic Behavioral Health, Inc., finds himself sentenced to 90 months in prison. Earle McNeill pleaded guilty to fraud charges stemming from the investigation after a 14-year-old girl with cerebral palsy died from malnutrition and severe bed sores while in his agency's care.

Prosecutors said McNeill had "joined in the rampant fraud at the agency," adding that Multiethnic had "billed the city for services not rendered, and kept the contract by fabricating false records to make it appear that all services had been delivered."

Danieal Kelly's death led to the firing of top Department of Human Services officials, and multiple investigations of the city agency. DHS had paid Multiethnic about $3.5 million in federal funds from 2000 through 2007.


DISQUIETING OUTCOMES

A study issued in May of 2010 found that nearly 60 percent of young men who had been in foster care had been convicted of a crime, compared with 10 percent of young men who had never been in care. For women, three-quarters were on public assistance by age 24.

Forty-two percent of the young men compared with 20 percent of the young women reported that they had been arrested, 23 percent of the young men compared with 8 percent of the young women reported that they had been convicted of a crime, and 45 percent compared with 18 percent of the young women reported that they had been incarcerated.

The researchers explain that: "The picture that emerges from data we collected when they were 23 and 24 years old is disquieting, particularly if we measure their success in terms of self-sufficiency. Across a wide range of outcome measures, including postsecondary educational attainment, employment, housing stability, public assistance receipt, and criminal justice system involvement, these former foster youth are faring poorly as a group both in an absolute sense and relative to young adults in the general population."

One may well hope that their ultimate outcomes are brighter than are those of other youths who had been "emancipated" from state care. A 1991 federal study of former foster care wards found that one-fourth had been homeless, 40 percent were on public assistance and half were unemployed. Connecticut officials estimate 75 percent of youths in the state's criminal justice system were once in foster care.

A National Association of Social Workers survey found that children placed in out-of-home care, regardless of the reason, are at higher risk of developing alcohol and drug problems. The survey also found that 80 percent of prisoners in Illinois spent time in foster care as children.


THE BUSINESS OF REFORM

In a landmark Illinois action, United State Magistrate Joan B. Gottschall succinctly summarized the case that challenged:

defendant's policies and practices of (1) taking and retaining custody of children from impoverished parents and legal guardians because of their inability to obtain cash, food, shelter, or other subsistence, while failing to assist the parents and children to meet these needs; (2) failing to assist them to secure cash, food, shelter or other subsistence through the coordination of services to needy families and otherwise; (3) failing to make reasonable efforts to prevent removal of plaintiffs' children and reunite families; and (4) abridging the liberty and property interests of parents in retaining custody of their children and maintaining the means to support themselves and their families.

Gottschall thouroughly reviewed the case, writing a point by point analysis in which she ultimately concluded that the policies and practices of the state's child welfare agency were nothing short of "conscience-shocking."

To the casual observer, the child welfare system would appear to be in a perpetual state of reform. Incremental adjustments, such as alterations in caseworker training policies, efforts at involving law enforcement in varying degrees during the investigative stages, movement toward a "less adversarial approach" to interventions, privatization, and varied reorganizations of existing bureaucratic structures have been identified as among current reform efforts.

There have also been countless efforts at reform through litigation. As of 1990, George Miller and the members of the Select Committee on Children, Youth and Families had counted over 45 lawsuits which had been won by child advocates based on violations of the Adoption Assistance and Child Welfare Act. Since that time, the National Youth Law Center's Foster Care Litigation Docket has continued to grow in size.

While some modest gains have been made from time to time, for the most part these gains have been temporary. The brilliant rulings are written, the consent decrees are signed, and the special masters are appointed, even as little of substance changes for children and their families. As Miller candidly observed some years ago: "This system has been sued and sued and orders have been issued and people have just continued on their merry way."

These efforts at reform have failed because the core tasks of the child protection system - the investigation of families and the removal of their children from their homes - remain unchallenged and unchanged to this day.

While it is true that some children require a safe haven from abuse or neglect, the great tragedy is that those children in true need of placement often are not identified - even in the event that they come to the attention of the system - while those for whom placement is inappropriate are removed from their homes by the hundreds of thousands. As professor of social work Leroy Pelton explains:

It is my belief that not only are there many children in foster care who should not have been placed there, but that there are other children who are being wrongfully left in their natural homes. In short, children are being removed from their homes in the wrong cases and being left at home in the wrong cases. Furthermore, it is my belief that if only those children were placed in foster care who actually need it, we would have very few children in foster care.

The rescue crusade continues, as not only has federal oversight has been all but nonexistent, but Congress has often waived penalties imposed on states for lack of compliance with the reasonable efforts requirements of Public Law 96-272. After years of well-documented indifference on the part of child protection and foster care agencies toward the modest requirements of the law, Congress has decimated the meager protections it offered children through its enaction of the Adoption and Safe Families Act.

At the heart of it all are the perverse federal financial incentines that reward states for removing children from their homes and holding them in state care. Adding additional fuel to the fire are federal incentives favoring adoption over reunification.

Under the rubric of a war against child abuse, the destruction of families will likely continue until such time as the casualties of the war mount to such an extent that even Congress cannot overlook them. The misdirection of funding away from assisting the poor toward instead removing an ever-increasing number of their children is likely to continue unabated until such time as society reaches a more compassionate consensus and disassembles the child removal apparatus, establishing in its place a system that is genuinely supportive of families and children.

Today, "business as usual" remains the rule in these United States. And it is vulnerable children, their state-fractured families, and the taxpayers who continue to pay the price.




References

State Reviews

"Horrific Abuse Alleged in Mass. Foster Care," Courthouse News Service, April 19, 2010.

Connor B. v. Patrick, Civil Complaint, April 15, 2010.

"Court hears arguments in foster care lawsuit," Channel 10 News, Providence, Rhode Island, January 5, 2010.

Associated Press, "Judge orders records in toddler's death opened," as reported on LEX18.com, Lexington, KY, May 4, 2010.

"County To Pay $300000 In Lawsuit Over Child's Death," Channel 7 News, Denver, Colorado, March 2, 2010.

"Motion Filed In DHS Lawsuit," FOX23 News, Oklahoma, March 25, 2010.

"Report: State foster care system lacking oversight," Online Athens, January 23, 2010.

"Report: Georgia foster care oversight lax," Associated Press as reported by The Augusta Chronicle, April 19, 2010.

"Lawsuit Filed Over County Foster Care," NewsRadio 840 KXNT, April 14, 2010.

Brian Haynes, "Lawsuit claims inadequate care of foster children by welfare agencies," Las Vegas Review-Journal, April 14, 2010.

Garrett Therolf, "L.A. County to develop foster care investigative unit," Los Angeles Times, March 24, 2010.

Ann Mullen, "Investigators: Starved to Death in State Care," Channel 7 Action News, WXYZ, May 1, 2010.

The Stacked Deck

Bob White, "Model Court: A big change for justice," News-Enterprise, May 12, 2010.

The "Other" Kentucky Lottery: Child Protection and Permanency for Abused and Neglected Children in Kentucky in 2005, The National Institute on Children, Youth & Families, Inc. & Kentucky Youth Advocates, January 2006.

Investigative Report, Allegations of misconduct by certain employees of the Department for Community Based Services - Lincoln Trail Region related to the removal of children and/or the termination of parental rights based on alleged abuse, neglect, or dependency, Office of the Inspector General, Robert J. Benvenuti III, January 10, 2007.

The Termination

Ann Mullen, "Investigators: Starved to Death in State Care," Channel 7 Action News, WXYZ, May 1, 2010.

The Parent Representation Project at the University of Michigan Law School web site offers a commentary and links to the briefs and court rulings in Mitchell's case.

The National Project to Improve Representation for Parents Involved in the Child Welfare System, American Bar Association.

National Reunification Day, American Bar Association.

Psychotropic medication

Los Angeles Times, "Calif. group homes drugging children to keep them docile", as reported in Baltimore Sun, May 17, 1998.

National Center for Youth Law, NCYL Seeks Relief for Children in Las Vegas Child Welfare System; Sues for Damages and Reform, press release, April 14, 2010.

Henry A. v. Michael Willden et al, Case 2:10-cv-00528, civil complaint, US District Court, District of Nevada, as filed April 14, 2010.

Retaliation

Bill Grimm, Angela R. is latest chapter in systemic child welfare litigation, Youth Law News, March/April, 1992

Associated Press, Officials oppose bill to protect foster parents, Seattle Times February 6, 2004.

Brian A. v. Sundquist, No. 3-00-0445, U.S. District Court, Middle District of Tennessee, Nashville Division. Civil Complaint

Privatization

Testimony of TC Mosier, United Foster Families for Children, SRS Oversight Transition Committee, Topeka, Kansas. November 4, 1997.

Joint Committee on Children's Issues, Report of the Joint Committee on Children's Issues to the 2010 Kansas Legislature, Kansas, December 2009.

Cover letter from Rep. Mike Kiegerl concerning the Final Report of Joint Committee on Children's Issues to the 2010 Kansas Legislature, March 12, 2010.

Falsified records

Office of Inspector General, Sheryl G. Steckler, Annual report, State of Florida, Department of Children and Families, September 29, 2009.

Marci Laehr Tenuta, "Instead of investigating child abuse, worker filed false reports, " The Journal Times, April 28, 2010.

Veronika Belenkaya and Stephanie Gaskell, "Former child welfare caseworker played hooky - and forged documents to cover it up, authorities say, Daily News, May 27th 2009.

Structural corruption

New York State Medicaid Fraud Control Unit, 2009 Annual Report, April 2010.

United States Attorney, Southern District of New York, Former fiscal director of New York City foster care agency found guilty for her role in adoption subsidy scheme, press release, August 13, 2009.

Office of the State Comptroller, Division of State Government Accountability, New York City Administration for Children's Services, New York City Human Resources Administration, Health, Safety and Fiscal Issues Relating to Legally-Exempt Child Care in New York City, Report 2007-N-11, May 29, 2008.

Nathan Gorenstein, Jail for a Multiethnic founder in Danieal Kelly case," Philadelphia Inquirer, April 23, 2010.

Disquieting outcomes

Mark E. Courtney, Amy Dworsky, JoAnn S. Lee, Melissa Raap, Gretchen Ruth Cusick, Thomas Keller, Judy Havlicek, Alfred Perez, Sherri Terao, Noel Bost, Midwest Evaluation of the Adult Functioning of Former Foster Youth, Chapin Hall at the University of Chicago, 2010.

Fred Bayles and Sharon Cohen, "Chaos Often the Only Parent for Abused or Neglected Children," Los Angeles Times, April 30, 1995.

Beth Azar, "Foster Care Has Bleak History," APA Monitor, November, 1995.

The business of reform

Norman v. McDonald (also known as Norman v. Suter, Norman v. Johnson, and Fields v. Johnson), 739 F. Supp. 1182 (N.D. Ill. 1990); 930 F. Supp. 1219 (N.D. Ill. 1996). National Center for Youth Law Case summary. Fields v Johnson, Report and Recommendation, Joan B. Gottschall, United States Magistrate, January 16, 1990.

See generally the sections Foster Care and Child Welfare Testimony and Reasonable Efforts for some examples of the testimony rendered during this period.

Leroy Pelton, For Reasons of Poverty: A Critical Analysis Of The Public Child Welfare System In The United States, (New York: Praeger, 1989). p 67.



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