Tuesday, January 18, 2011

What is government if words have no meaning?

This post is not about Jared Loughner--but it is curious that, of all his disjointed remarks quoted in media recently, this is the single challenge that can stand by itself as a worthwhile question. Words are exactly what define government, through and through, from debate and discourse to the "consent of the governed" to laws to judgments made according to those laws. Sometimes those words are hollow. Which brings me to an email I received today from the state director of Child and Family Services. A proposed bill amends the existing juvenile court act to create a proceeding by which a child aging out of foster care can elect--willingly--to stay in, subject to conditions (e.g. work or go to school), by means of a petition to juvenile court. The bill included provisions I thought were simply odd: there can be no grounds on which to pursue termination of parental rights, and reasonable efforts to reunify the child with his or her parents must have been made. Since the whole point is that the child is no longer a child, how could these elements be relevant? And how would they not--at least theoretically--create a basis upon which a child turning 18 could be denied access to these services based on what adults--his or her parents or the child welfare agency--had done or not done?

Here is the director's reply to my email asking about the bill language:
 The TPR and RE issues you address are simply language required by the feds to access IV-E funds-they determined the language….we just included it in the bill.  
TPR means termination of parental rights; RE means reasonable efforts. "Simply language required. . . to access [federal] funds". Language, by the way, that is incorporated into a court findings and order. I continue to delude myself into thinking that court findings and order reflect fact-finding and legal interpretation. Well, that they are supposed to, even when it is vividly apparent that too often they are mere word-formulas delivered in order to sanction executive action by the government (child welfare agencies are executive agencies) and ensure the agency has every possible opportunity to reimburse itself. Can anybody say "boilerplate"?

I doubt this will have much impact--any impact--on the situation of those youth who opt to stay with foster parents. (Some stay anyway, with or without agency involvement. ) A colleague in efforts to reform child welfare (and reform what passes for child welfare reform) is suspicious of the bill and its possible coercive uses. I'm sure we will see at least some misuse once it is passed (it will be passed, no doubt about that) and I suspect it will be the kind of misuse that is hard to pin down--but which you understand if you can see it close up. But what I read loudly and clearly into the director's email is that this is what "TPR and RE" always mean. They are word-vehicles for unlocking federal funds. The surest way to challenge a child welfare agency is to threaten the money supply. Do they profit from child welfare? I don't believe so, although some disagree.

But what is government when words have no meaning?

Thursday, January 6, 2011

Crystal Martinez’s possessions are more precious than the average teenager’s. The 18-year-old, who as a child was abused and neglected by her biological family, has not had a permanent home since entering foster care at 7.

When she was sent to a San Antonio residential treatment center in July 2009, she had to leave almost everything she owned — books, stuffed animals and mementos jammed into boxes and shopping bags — with Texas Child Protective Services.

But when she went to claim them six months later, Ms. Martinez made a heartbreaking discovery: Most of what she had stored was gone.
Especially with teens, kids may enter foster care--or be moved from foster homes to institutional placements--because of alleged risk to property for the public. States create laws and rules to protect the possessions and property of foster parents, and to compensate them when their property is damaged or turns up missing.

The same regard does not hold for foster kids. Sometimes foster parents took away my son's things. An evangelical Christian couple objected to a book I gave him about the Supreme Court and took that; it was replaced by a Tim LaHaye rapture novel. A residential treatment center routinely emptied my son's room of his possessions as a disciplinary measure. I think the idea was to use the room as a seclusion method without having to put it on the books as seclusion or because the seclusion rooms were always full (there were ongoing seclusion and restraint issues). Many items, including Christmas gifts he'd never been allowed to use, vanished forever. Once a foster father had gone on a tear while my son was with me for a family funeral, checking my son's room for contraband. My son had learned the glories of hip-hop and rap from other foster youth (as a decidedly unpopular kid with geek parents, this was not in his listening repertoire pre-foster care), and they all had a few forbidden Dr. Dre and Eminem in their underwear drawers. The other boys' drawers were not searched that day. Besides hidden food (chips and candy bars), the foster father found my son's music stash. That night he gouged all 7 CD's with a fork. The rules for the placement were that if my son was upset about the foster home, I had to talk to the foster parents first. The foster father admitted what he had done. After a pause, he asked if I thought he had done the wrong thing. I told him about a contradband book my mother confiscated when I was 11--A Tree Grows In Brooklyn, which a neighbor had told her was not appropriate for a child to read. She didn't destroy it, she put it on the highest shelf in the living room bookcase. I found it a year later when I stood on a chair to dust the shelves. I snatched it to my chest, hid it under the mattress, and read in bed until nearly dawn. Then, when the foster care agency became involved, he--and they--denied it, while assuring me that what he had done was contrary to policy, which called for giving the items to his father and I to keep for him until he returned home. Then we could decide whether he should have them.

The music had been an ongoing issue for the foster father, who initially allowed the boys to buy whatever music they wanted. Later the foster father became squeamish about rap music. We had actually talked about this a few times. I reminisced about trying to get my dad to listen to my Jefferson Airplane album. I asked the foster father what he listened to when he was the boys' age. "Acid rock," he replied. He'd grown up with parents who were too busy drinking and fighting to pay much attention. My theory was that I wouldn't make a big deal about the music, but balance it with a diet of Bach and the Beatles. Anyway, what happened to the CD's wasn't about the music. The foster father was going through a lot of stress in his own family, while the agency had decided to waive restrictions on the number of special needs foster children placed there. Instead of one teenager, or a sibling pair, there were three. The oldest became a permanent placement. The middle acquired a history of serious criminal violence after returning home at 17, including a stabbing that sent him to prison at 18. My son was the youngest and smallest, and more than once the oldest would shove him or punch him, saying sotto voce, "Nobody saw it, so it didn't happen." He had also taught my son--10 at the time--to smoke pot from a bong.

When my son first entered care--suddenly and unexpectedly--I brought a bag of personal items to social services for him. Besides clothing and other necessities, the bag contained items I felt would help him link with home during those first weeks in a shelter facility (not a foster home) as a terrified 10-year-old. The bag languished in the caseworker's office for a week. Ever since then, I am incensed when I read about projects to provide foster children with teddy bears and fleece blankets--since, as we all know, they are routinely forced to flee the scene of their abuse with nothing but the clothing on their backs. That makes a better story, of course.

We gave our son a white gold ring, a match to the wedding rings his father and I wore, as a symbol of our unity as a family. His ring was stolen by a foster brother and lost. Other items he had--an mp3 player, toys--were also stolen by that foster brother. The foster parents in that home replaced the mp3 out of their own pockets. I knew the foster brother was very troubled (he was eventually institutionalized), I knew my son was entitled to the protection of his own possessions--but I also thought that the system should compensate my son the same way they officially compensate foster parents for property damage or loss by foster children. That compensation is enshrined in state laws. No laws exist to protect what belongs to foster children.

Saturday, January 1, 2011

Wyoming child protection laws--due process, reasonable efforts, and part of our story

Wyoming's rate for removing children from their parents is low--much lower than nearby states (North and South Dakota, Montana, Nebraska, Iowa--which have some of the nation's highest removal rates). Highlights of Wyoming's child protection laws:

Although Wyoming's child welfare courts are closed to the general public, parents can demand a jury trial. Any decision whether to file a petition alleging abuse or neglect must be made by the district attorney's office, not the child welfare agency. The court is required to ensure that reasonable efforts are made (not just to find that the agency has made them), and any decision that reasonable efforts are not required, or have not been made by the agency, must be made by the court. The court orders who will be on the child's planning team, and must include the child's psychiatrist or physician. The planning team--not the custodian acting along--decides what the reunification plan will be. The plan has to be based on issues and facts the court has ruled on, if any. If the plan changes, these changes have to be stated "with reasonable specificity" and approved by the court. 

How these provisions play out in real life, I don't know.  The jury provision is weak in one respect: if the jury finds the facts alleged in the petition to be true, this means the child is found to have been abused or neglected. The definition of neglect is broad:
"Neglect" means a failure or refusal by those responsible for the child's welfare to provide adequate care, maintenance, supervision, education or medical, surgical or any other care necessary for the child's well being. Treatment given in good faith by spiritual means alone, through prayer, by a duly accredited practitioner in accordance with the tenets and practices of a recognized church or religious denomination is not child neglect for that reason alone                      14-3-202(D)(vii)
 Conceivably, a jury might find allegations to be true even if it is questionable that the alleged facts would constitute neglect; perhaps preliminary hearings address this worry.

It may also be that the District Attorney's role, or that of the court-appointed multidisciplinary team, tends to rubber stamp child welfare agency decisions. Nonetheless, Wyoming statutes do provide some footing for a  parent defense attorney--if that attorney is willing--to challenge agency actions or court decisions.

Living under Wyoming laws would have made some difference to my son, my husband, and myself. Deprivation was adjudicated by the juvenile court (no jury in North Dakota!) based on lack of adequate housing.  But one of those kitchen-sink case plans was thrown at us. It included demands to participate in services for issues the court had specifically eliminated from its findings. As for housing, the best the agency could come up with was the requirement to obtain adequate housing. On the surface that might make sense, but the actual circumstances were complicated. My son's father had a home half paid for, but which needed repairs. He was unable to work due to a chronic illness which had recently been diagnosed and which was quickly becoming life-threatening. Without health insurance, assets he did have had to be earmarked for medical care. If he had decided to walk away from the house we was buying, those assets were enough to disqualify him for housing assistance. He needed a caregiver available 24 hours a day. The caseworker's expectation--not written, but verbally stated--was that I would simply apply for housing assistance myself and leave him behind. Of course, since I did not have custody of our son, I could not apply for family housing assistance. Housing assistance waiting lists were a year to two years long.

If I'd been the caseworker, I would have focused on two areas: the sick father and those home repairs that were most essential. While the caseworker nagged us for not getting counseling for my son's father and my not getting housing assistance to move out of the house, I was busy. First of all, my son needed help. As a "special needs" foster child with a foster father who refused to acknowledge his disability (while collecting premium "therapeutic" foster payments because of that disability) my son's welfare in foster care was greatly at risk. Although "therapeutic care" meant my son had an additional caseworker with the private agency in charge of the foster placement, that worker's unprofessional behavior ultimately got her fired--but we had to deal with it for a long time anyway. The school was denying special education services--a complicated, drawn-out battle on its own, and one the caseworker and her agency refused to get involved in. Later, when the placement (predictably) failed, my son was moved 140 miles from home, where the same problems continued to surface. In that placement, the therapeutic caseworker wasn't even on the job--that one had a chronic illness, went on medical leave, and the private agency did not assign a caseworker to cover the case, so my son did not even have a therapeutic case plan.  After 5 months he was moved again to a residential treatment center. There, a new set of problems emerged: mistreatment of my son (and other youth) by the treatment facility. Some mistreatment emerged as official licensing violations.  Meanwhile, his father regularly needed hands-on care at home, which grew to include special diets, help with bathing and other basic activities, scheduling appointments (eventually hundreds of miles from home). There was a long battle--which required a lawyer's help--to qualify him for disability benefits and, eventually, Medicare. In between all that was the house itself. My son's father managed to complete insulating the attic, saving on heating costs. A friend who helped him with that also replaced the kitchen sink and plumbing. I built and installed new kitchen cabinets and counters, replaced broken windows and screens, repaired a sagging porch and built new steps, sanded and varnished floors, and whatever else I could teach myself to do.

In spite of all that effort, our parental rights could have been terminated, simply because we did not comply with the recommendations of social services: parent counseling my son's father was too sick to participate in, chemical dependency evaluation he simply refused (the court had rejected the county's claims of chemical dependency). Non-cooperation with "recommendations" is enough for the court in North Dakota. In Wyoming, the multidisciplinary team would never have been able to write the case plan thrust on us for two years, because it was not supported by the original adjudication findings.

Of course, our rights were not terminated. Our first caseworker quit her job with the county. Her replacement took a step the first one never did: she filed "compelling reasons" not to terminate rights. (This is something only the agency can do; state law does not mention any provision for parents to petition the court to make such a finding.) This caseworker also confided (off the record) that there were people in the system who were "scared" of me. My battles on behalf of my son had created paper trails and resulted in outside investigations. I've learned that the last thing county agencies want is for this sort of thing to show up in the courtroom. Saving face--not safety of children--is what is ultimately paramount. Sometimes the question isn't whether a parent is "cooperative"--but what kind of skills and resources they can muster when compliance is out of the question. There is not enough leverage for us in the child welfare laws as written. Some of us can create the leverage child welfare laws don't provide--but you can bet that child welfare judges and referees won't hear anything about it. My "paper trails" involved regulatory agencies outside the child welfare framework, using state and federal regulatory resources. I didn't always win--but I caused scrutiny which was the last thing these agencies wanted. This tells me we need more scrutiny in the child welfare system by itself, including the child welfare courts. Those courts were not going to ensure due process, so I had to look elsewhere.