Improving the Foster Care System - Part XII

In my ongoing series on improving the foster care system, I've written about confidentiality before.  In Improving the Foster Care System - Part IV,  I suggested that eliminating the barrier of confidentiality between social workers and foster parents would help both the families and the children involved because foster parents wouldn't be left in the dark about some of the challenges their foster children face.

This week's post also advocates eliminating confidentiality.  A recent paper published by Georgetown University law professor Matthew I. Fraidin makes a strong case that the confidentiality restrictions placed on the foster care system mask a growing body of research discussing the ineffectiveness of child welfare interventions.  Furthermore, the cover of privacy also stifles public debate about these important issues.

Professor Fraidin's paper discusses the following:

In most states, child welfare hearings and records are sealed or confidential. This means that by law, court hearings and records may not be observed. The same laws and court rules also preclude those who are authorized to enter and watch from discussing anything learned or observed in a closed courtroom or from a sealed court record with anyone not involved in the case. It is the restriction on speech—on telling stories about child welfare—with which this Article is concerned.

The master narrative of child welfare depicts foster care as a haven for child-victims savagely brutalized by “deviant,” “monstrous” parents. Notwithstanding this shared public understanding, however, most children in foster care have experienced, or are alleged to have experienced, neglect—deprivation of food, clothing, shelter, education, or another necessity of life—not physical abuse. There is also a growing understanding that some children in foster care ought not to be there at all. In addition, research and experience indicate that many maltreated children would be better off if simply left at home—with those responsible for the maltreatment—rather than placed in foster care.

This Article argues that confidentiality laws perpetuate the inaccurate master narrative, and preclude other stories from informing or influencing that narrative. Stated simply, laws prohibiting the discussion of child welfare cases silence a vast number of stories. By their terms, these laws define the stories that may not be told, and the putative storytellers who may not speak, while designating as acceptable other stories and other voices. The unchallenged dominance of the inaccurate, law-sanctioned narrative affects even those involved in child welfare as a profession, and by affecting their worldview, diminishes the quality of care provided to children. The laws that require silence outside the courtroom permit the acceptance of pervasive dysfunction in child welfare, and affect the administration of justice inside the courtroom.

I absolutely agree with Professor Fraidin's assesment.  In our case, our social worker Nasty Number Seven probably wouldn't have been able to continue her lies and misrepresentations of facts had she had to make them under the gaze of public scrutiny.  The current system allows workers to say and do pretty much anything, without fear of public reprisal.  Because court proceedings are secret, there is little consequence for workers who misrepresent the truth.  A worker who lies will probably never face public condemnation, and likely will never be caught unless her lies are so egregious that the judge catches her or the case is overturned on appeal.

Professor Fraidin is also correct in saying that the current system of secrecy prevents dissenters from criticizing the effectiveness of the system.  Because it is so difficult to see how well the system is actually working, and because the people who do see it aren't allowed to talk about it, no meaningful debate can take place.  Professor Fraidin states that a growing body of research suggests neglected children are often better off left in their homes than taken into foster care.  Yet, because the public has no visibility into the system, this reality garners little or no attention.

Professor Fraidin also points out, and our experience validates, that the system often removes children from their homes and returns them within a few days or weeks.  It is unlikely this action makes the children any safer, but it is highly likely that being removed from their homes results in lasting emotional harm.  According to Professor Fraidin's paper, approximately one-third of children removed from their homes in Sacramento County, California, are returned home within the first 30 days.  Also, according to U.S. Dept. of Health and Human Services statistics, as many as a third of children removed from their homes in 2001 were later found not to be maltreated at all.

These realities do not match the public perception of the foster care system.  The public narrative of Child Protective Services is that the system exists to remove abused children from immediate danger caused by monstrous parents.  However, statistics show that this story describes only a tiny fraction of children taken into foster care.  Professor Fraidin's research points out that most kids taken into foster care are removed due to neglect, and that definition overlaps a great deal with what poverty looks like in America.  Minority children are removed at far greater rates than white children, and receive poorer quality of services while in foster care.

Certainly this was the case with our child.  Her third worker, the Mistress of Unfair Remarks, suggested that Danielle should be moved to another home, because she was never going to amount to anything and at least deserved to remain within her ethnic and cultural heritage.  Our friends, who were adopting white children, had a wide assortment of services, therapies and counseling given to them and their children, while we had to fight tooth and nail for comparatively inferior services.

I'm not advocating that child welfare proceedings should never be confidential.  Certainly, there are cases where the needs of the child or extreme media scrutiny might argue in favor of keeping a specific case confidential.  I agree with Professor Fraidin, though, that the presumption should be in favor of openness, rather than secrecy in most cases.  That's the only way a reasoned and accurate debate about the effectiveness of child welfare services can take place.

If you haven't already, I highly recommend you read Professor Fraiden's paper.  You can download a copy for free from: http://scholarship.law.georgetown.edu/facpub/570/