Improving the Foster Care System - Part XXV

I'm sure that this is old news for some folks who are good about following current events, but since I'm not sure this story has received much in the way of national news coverage, it's worth sharing.

From Michigan radio:

Plan would require foster children to shop for clothing in thrift stores

Foster children in Michigan would use their state-funded clothing allowance only in thrift stores under a plan suggested by State Senator Bruce Caswell.

Caswell says he wants to make sure that state money set aside to buy clothes for foster children and kids of the working poor is actually used for that purpose.

He says they should get "gift cards" to be used only at Salvation Army, Goodwill or other thrift stores.

Although I can understand that the plan is designed to a) reduce costs and b) ensure that foster children actually receive the clothing to which they are entitled, it's a dumb idea.

I've already written about foster children using garbage bags as luggage, and I think this plan is yet another way that foster kids will be forced into feeling like second-class citizens. If the only place they are allowed to shop for clothing is at a thrift store, that tells the child that they aren't worth anything new.

That's a crappy place to be.

Even within in-tact families, many kids grow up feeling that wearing hand-me-downs from older siblings is a source of shame. Although some kids look forward to wearing their older brother or sister's cool shirt, many younger kids feel a certain amount of resentment that the older children get the new stuff and they don't.

How is a foster child going to feel, especially if he or she is living in a home where the biological children get new stuff?

Again, I think this is a place where the foster care system fails kids. It fails to recognize that these children have feelings. Putting a child in foster care shouldn't further traumatize a child. If the state is going to assume the role of a parent, it should assume the role of a really good parent, and that means things like a good education, proper services and new clothing.

Now I'll admit that not everything we bought for our own child was new. She's received a lot of new clothes over the years, from us, from friends and from our relatives. She's also been given quite a few nice hand-me-downs from friends, and we've made a few trips to the secondhand store. Danielle's clothing consists of a mix of stuff, most new, some not.

Now I don't think that taking a foster child to shop at a used clothing store is inherently bad. Going to a thrift shop is like a treasure hunt, in that you never know what you might find. Sometimes, you find vintage clothing. Sometimes, you find brand new, name-brand items with the tags still on them. Sometimes, you find nothing at all. It can be an interesting and fun adventure.

But my worry with Michigan's plan is that it would force kids into a position of using thrift stores for everything, and that just feels lousy. Who wants to wear secondhand underwear or socks, for example?

Although I understand Senator Caswell is all about saving money for the state, I think the plan is a bad one because it fails to recognize the emotional impact it will have on the kids who fall under the policy.

I think a better plan would be to do what our state does: twice a year, foster parents receive a check for x amount of money, which they can spend any way they like. It's not a lot of money, and many foster families end up dipping into their own pockets and spending more than what the clothing allowance provides. If the state is worried that parents aren't spending the money properly, then perhaps they should just require that the parents show receipts to prove what was purchased.

So if we are going to improve the foster care system, politicians need to recognize that these children are human beings with thoughts, feelings and emotions, and not simply numbers on a spreadsheet.

Improving the Foster Care System - Part XXIV

A number of weeks ago, I was looking through my blog stats and I noticed that someone had found my post Improving the Foster Care System - Part VIII with the following search key words:

what if there wasn't foster care

Immediately, I thought this would be a terrific post.

What if there wasn't foster care? What would the world be like if we completely disposed of the foster care system?

It's an interesting question. To answer it, we need to go back and look at the history of the child welfare system*.

The United States Foster Care System arguably began with the case of Mary Ellen McCormack in 1874. Mary Ellen's foster parents - though I use the term lightly, since the relationship was more like indentured servitude - beat the 10-year-old girl regularly, whipping her with a rawhide whip and striking her on at least one occasion with a pair of scissors. At that time, there were no laws in the United States prohibiting child abuse, so the ASPCA used animal cruelty laws to intervene on her behalf, effectively arguing that children should enjoy at least the same rights afforded to dogs, cats and horses.

The first law licensing foster homes was passed in 1885 by the State of Pennsylvania, making it a misdemeanor to care for two or more unrelated children without a license. South Dakota enacted the first law funding a child protection agency in 1893, and the beginning seeds of what became today's social services system were planted in the early 1900s.

In those early days, the system was focused exclusively on child abuse, and the system became involved only in extreme cases where children died or suffered serious injury. The notion that the system needed to protect children from neglect as well as abuse, and the requirement that child abuse must be reported to authorities, didn't become widespread until the passage of the Federal Child Abuse Prevention and Treatment Act, or CAPTA, in 1974.

Since then, the regulation of parents' conduct has grown at a steady rate, and the number of reported cases of neglect has rapidly eclipsed those cases of abuse. By 2009, some states were reporting that as many as 92% of the cases handled by their Social Services agencies stemmed from neglect rather than abuse. In that same year, few states reported that physical or sexual abuse accounted for more than 20% of the cases of child abuse and neglect.

Given these facts, several questions arise: Has the foster care system morphed beyond its originally intended purpose? Has it become a system more focused on removing children from poor minority families than preventing the severe physical and sexual abuse that it was intended to stop? What would happen if we didn't have a foster care system?

Looking at the demographics of today's foster care system, the vast majority of kids taken into care are removed from economically marginal minority families. Granted, not all of them are minorities, but few upper-middle class white married couples have their children removed by social services, and even fewer of them lose their children permanently to adoption. Research has shown that a large percentage of children taken into the foster care system don't stay there very long, but even those brief stays prove very damaging and traumatic to the children involved.

Conventional wisdom says that, even when children are ultimately reunified with their parents, they are better off for the system's actions to "protect" them. Conventional wisdom says that action, and intervention, ultimately benefits the children. Conventional wisdom says that we can't turn our backs and ignore children who might be at risk. Conventional wisdom says the social services system creates better outcomes for kids.

What if conventional wisdom is wrong?

I certainly think that it might be. When I look at my own child, I am not convinced that she's really better off for having had the foster care system in her life. It intervened when she was 18 months old, which likely could have contributed to her emotional challenges now, and ultimately returned her to her mother who continued to neglect and abuse her for another nine and a half years. It intervened again, when she was found in the company of an unrelated adult male who had been accused, but never convicted, of child molestation. She was taken away from this man, placed in our home, and ultimately adopted.

That's supposed to be a happy ending to a terrible story, right? It might have been if, during the years since her removal, she had received appropriate therapies and interventions. If she'd received the right treatments, then she might not have started physically assaulting us. If she hadn't done that, we'd have a much better relationship, and she would likely be a lot happier. Although we absolutely don't regret sending her to boot camp, because it stopped the violence, she came home quite a bit less happy as a person.

I'm not sure that I can entirely blame the boot camp for her lack of happiness now, though. Danielle has been through a lot of very bad stuff in her life, so I'm not sure that her current depression was caused by the camp, her weighty past, her teenage hormones or her genetic predisposition (inherited from her birth mother) for depression. Some or all of these things could be true, or it could be caused by something else entirely.

But I'm not convinced that Danielle is really better off in absolute terms. Yes, she's clearly got more of an education than she would have if she had stayed with her birth family. She may very well have more material resources at her disposal than she would have if she had hadn't been taken. But, what she has lost is her family relationships, and in her mind that's worse than anything else.

From an objective point of view, I'm not sure that losing those relationships was all so bad. The birth family members that we have met all have considerable problems with substance abuse, and some are clearly involved in dangerous criminal behavior. Unfortunately, it doesn't matter to Danielle. These are still her people and she loves them regardless. Even though we think that cutting off all contact would probably be the best thing for us and Danielle, we haven't done so, because we recognize just how much her family means to her.

And of course, for just about everyone in this world, one tends to want most the things one cannot have.

So I'm not sure that Danielle is truly better off. So many of the adopted kids I know of have permanent, lifelong problems. They have problems with their relationships, they have problems with employment, they have problems with their birth families and with their adoptive families. These kids grow into adulthood, feeling as though they don't belong to their birth families anymore or their adoptive families now, and they struggle.

If there wasn't a foster care system, what would happen? Well, more kids would be neglected, but at least they would be neglected by their own people. As so many former foster kids have told me, living with the devil you do know is often better than living with the devil that you don't. For some kids, being mistreated by their birth family where they belong, is psychologically preferable to being placed in foster homes where they are treated like second-class citizens at best, and are abused again at worst.

Even in cases like LT's where the foster care system protected her from being killed, I wonder if she would be better off had the system not intervened.

Now I want to be very clear here. I'm not saying this lightly, and I'm not saying this because I think LT lacks value as a person. She clearly has value. She clearly deserves a place in this world and should have found a caring, loving family. She should not have been abused.

But I look at her suffering now, as an adult, and it seems so extreme. It's clear LT suffers immensely, and I sometimes wonder if the system would have been kinder not to intervene, and to let her die as a child, than to put her through that horror, only to subject her to even more emotional neglect, physical abuse and trauma as she was bounced around the foster care system.

Is she better off for having been "saved" by the foster care system?

I can't answer that question for LT. She's the only person who can measure the value of her own life. What I can say, though, is that I see many kids who are failed by the foster care system, and a lot of unnecessary suffering.

So if there wasn't a foster care system, and the government didn't get involved in people's personal lives, what would happen?

Sure some kids would die. But they are already dying. They die even when social workers are supposed to be watching them. Sure some kids would be abused, but the truth is that children are already being abused and aren't discovered. If you have ever seen an episode of the television show Intervention, you'll notice that a great many of the addicts on the show suffered some form of child abuse, especially among the women. In many of those cases the abusers were never punished. Jaycee Dugard was abducted and abused for 18 years, and the child welfare system affirmatively failed to protect her.

If we got rid of the system as it exists now, sure, bad things would happen, but I don't think they would be any worse than what already happens with the system in place. Kids still die and children are still abused and neglected.

If we got rid of the grossly malfunctioning system, we would free up billions of dollars that could be spent on strengthening law enforcement, and helping families get out of poverty, thereby mitigating many of the circumstances that lead them to neglect their children. We could spend the money on providing legitimate help to the few children who are are being grossly abused, and stop spending the money on therapy for kids who wouldn't need it if they'd simply been left alone.

So what if there wasn't foster care? I don't think the world would go spinning out of orbit and go crashing into the sun.

I wonder if they had things right back in 1870's when child abuse was handled like animal abuse, and everything else was left up to people's own private business. Certainly more families would be left intact, and people would muddle along like they always have.

So for today's thoughts on Improving the Foster Care System, we need to do a lot more rigorous research into the long-term outcomes for foster care alumni. We cannot simply take it as an article of faith that these kids are better off for having been in the system. We need real data to measure whether foster care alumni are better off for their experiences, and whether they are better off enough to justify the expense, effort and trauma of the system's intervention in their lives. We need to know for sure whether the system is actually making things better.

Right now, we just don't know that.


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* Thanks to FosterEema for doing the research for this post.

Cognitive Bias and the Blogosphere

We do not see the world as it is. We see the world as we are.
-- Jewish proverb

FosterEema here with another guest post. This one is triggered by a class I've been taking. The subject matter of the class is unimportant, but we've spent some time talking about the subject of cognitive biases. In a nutshell, cognitive biases are unconscious biases that creep into our thinking. They're not malicious by nature, nor is the suggestion of a cognitive bias an attack on the other person. We ALL do this stuff, unless we're very conscious not to.

There are a large number of cognitive biases, but I want to talk about a few which I think lead to a lot of the chaos and drama I see in the foster/adoptive blogging community:

• Confirmation Bias. A confirmation bias is a tendency for people to favor information which supports our preconceptions or beliefs. Because the human mind is highly tuned for pattern recognition, we tend to notice information which supports our beliefs more, and trust it more, than information which doesn't align with our beliefs. At the risk of being self-referential a bit, some of our readers have apparently decided that we abuse/neglect/hate Danielle, and they view everything we say as further proof of our bad faith. That's confirmation bias.
  
• Disconfirmation Bias. The cognitive opposite of confirmation bias, a disconfirmation bias means that we expect a higher standard of evidence for claims that go against our preconceptions than we do for claims that support them. We've all seen bloggers who've been attacked for slights, real or imaginary. In many of these cases, the attackers cling to their belief, seizing on crumbs to support them, even in the face of substantial evidence to the contrary. ("Social Services declared the allegations unfounded," for example.) This is disconfirmation bias in action.
• Fundamental Attribution Error. This kind of cognitive bias means that, when we're seeking to explain behaviors, we tend to favor personality-based explanations over situational explanations. That is, faced with a behavior we dislike ("my neighbor's not trimming the tree that hangs over my fence", we are more likely to view the behavior as caused by the other's personality defects ("she's an asshole") than to look for situational explanations ("she has arthritis and doesn't have anyone to help her cut the tree"). When we fall prey to fundamental attribution errors, our judgmental sides are given free reign to play and we lose the assumption of innocence.
  

There are other cognitive biases, of course, and I invite the interested reader to visit Wikipedia's article on the subject. However, I think these are the most common and relevant to the blogosphere. I believe that much of the drama we see in the blogging world arises from these cognitive biases, and that we should all strive to combat them as much as possible.

So, how do we do that? How do we overcome these cognitive biases? The key, I think, is to be aware of them. We need to be be aware of the natural traps our minds tend to fall into, and vigilant to stay out of the cognitive potholes. This is, of course, much easier said than done. But the effort is worth the pain and angst it spares everyone. To move past confirmation and disconfirmation biases means consciously giving all new information equal weight, whether it supports our viewpoints or not. To move past fundamental attribution errors, we need to train ourselves to look for situational explanations for behavior before - or instead of - looking for the character flaws in the other person.

Learning to move past these cognitive biases will, I think, cut down a lot of the needless sturm und drang that pervades the blogosphere. But it will also make us more aware, more perceptive, and more compassionate people. And that's all to the good.

Improving the Foster Care System - Part XXIII

Michele Bachmann is a member of the United States House of Representatives. From 1992 to 1998, she was a foster parent to a total of 23 foster teens.

She was quoted in this article as saying:

It was wonderful, probably the most intellectually rewarding time of my life.

The article went on to quote her as saying:

We are so thankful that we did. We were at least able to be part of the solution.

The madness has got to stop.

The biggest disservice that the foster care system does to everyone involved is to continue the myth that becoming a licensed foster parent is always one of the best, most rewarding, and fulfilling experiences one can enjoy.

It's a myth.

It's garbage.

It's not fulfilling to watch a raging teen destroy her bedroom. It's not intellectually rewarding to take your child from appointment to appointment, only to see her emotional state deteriorate and her problem behaviors increase. There is no joy in being blamed for your child's problems, no matter how much you advocate for her or try your best to do the right thing. There is no reward in doing your best, watching your child implode (or explode) again and again and again, when you know there's not a damn thing you can do about it.

Corey's comment to my post Secondarily Traumatized has stuck with me for the past few days:

And what's more, there is NOTHING we can do about it, and we all KNOW it. We cannot stop the trauma. We cannot heal our children. We cannot get them into residential facilities. We cannot depend on mental health professionals, hospitals, school systems, police, social services, doctors, courts, churches/clergy, family, or friends.. NO ONE.. and we KNOW we can't, because we have all been totally, completely, utterly FAILED by these people. And in many cases, not only FAILED by them, but BLAMED for our children's behaviors and our inability to "fix" them, to protect our other children, and to cope with them ourselves. It is completely unfathomable what we live with, and no one understands except other parents of kids like ours.

So to improve the foster care system, we need to get real about what parents should expect. When we went through PRIDE training back in the Spring of 2006, our trainers didn't really discuss the heavy-duty problems we should expect as foster or potential adoptive parents. Sure, they mentioned the possibility that some of the foster kids in the system could have problems like FASD or Reactive Attachment Disorder, but they led parents to believe that these problems were relatively rare. One training video we saw, showed a cute-as-a-bug African American boy saying that he "hated" his foster parents. The parents responded in a loving way, and the next thing you knew the little boy was snuggling in for hugs. It was the perfect ending to what was a pretty mild behavioral incident.

They don't tell you the truth is that this cute-as-a-bug boy might smear feces on your wall, or this innocent little girl might steal your socks, use them as menstrual pads, and then throw them behind your dresser to find weeks later. They don't explain that your sweet new child might rage for hours, causing injury to himself, household pets, or others.

The ubiquitous "they" make it somewhat difficult to become licensed as foster parents, so that only the determined survive, but not so hard that the majority quit. People are led down a garden path, thinking that they are doing the right thing and will be "helping" children and their families.

I often feel as if I am unable to help my child very much at all.

Now in fairness, in some respects she is much better off than she was five years ago. She's no longer living in a place where she's routinely neglected or abused. She's being sent to school on a regular basis, and she's learned to read and write. She's living with people who, despite everything she's done to them, still care and want what's best for her.

So in those respects, she's better off. If she had stayed where she was, the abuse and neglect would have continued, she probably would never have learned to read, and she would likely have become pregnant long before her 18th birthday.

But I also recognize what she has lost. She has lost her birth family members, whom she loves beyond measure. No caregiver, no matter how much she might grow to love them, can ever compare to the the now-embellished memories of all the good times she had with them. She has forgotten, as we all do, many parts of her painful past, and she remembers only the beautiful parts of her birth family that she wants to remember.

And those memories cause her considerable pain.

I also recognize that in many ways we have failed to help her. We have failed, despite numerous parenting classes, visits to numerous therapists, and pleading with social workers, to find any meaningful, lasting help for her emotional problems. Yes, sending her to boot camp put an end, at least for the time being, to her violence against us, but it didn't solve any of the underlying psychological problems that fueled the violence. Four therapists, a behavioral aide, a psychiatrist, and at least two school psychologists have failed to make a lasting dent in her emotional and psychological problems.

Had we known what was ahead of us, we might have left this very daunting job to someone else. We very well might have said, "this isn't the life for us," and we would have spared ourselves, and possibly even our child, a certain amount of pain.

If our foster parent trainers had been really honest, we might have been scared off, which might have been better for everyone.

I know I have said this before, but I feel the need to say it again. We need to be a lot more honest in the way we train and prepare foster parents. Sure, it might reduce the available supply of gullible families willing to take in troubled children, but I think it would benefit those kids in the long run to have families who really know what they are getting into and are prepared to deal with it.

Improving the Foster Care System - Part XXII

A couple of weeks ago, one of my readers sent me a link to this article. I've been meaning to write about it ever since, but my absolutely overloaded work schedule prevented me from giving the story the attention it deserved.

Apparently, social workers are now starting to express worry that if they don't do their jobs properly, they might be arrested.

This worry comes, quite legitimately, after a social worker and her supervisor were arrested for negligent homicide in connection with the death of a child that they were supposed to be supervising.

Now I realize that I blogged about this story before in one of my previous Improving the Foster Care System posts, so I might just be beating a dead horse. Now that I've had a chance to think about it, however, I'm not sure that social workers being scared for their personal futures is necessarily a bad thing.

In my earlier post, I wrote:

Now as much as I dislike most social workers, and I despise these two in particular for not doing their jobs, I'm not sure that I agree they should be prosecuted for criminally negligent homicide. It's true they did not do their jobs, but I'm not sure that justice is served by holding them accountable for a death that was caused by the child's grandmother.

Although I still agree that the child's grandmother is primarily responsible, now that I've had a chance to think about it a little more, I'm not sure that prosecuting these workers is entirely a bad thing. Clearly, they didn't do their job, and a kid died as a result.

I've come to the conclusion, after mulling this over for a few weeks, that prosecuting workers in cases like this will probably improve the foster care system, though not for all the reasons you might think. Yes, it certainly will make workers think twice about neglecting their caseloads, and might make them scream a little louder when they need help, which are both important. However, if social workers can be prosecuted for this kind of conduct, it just might open the door for prosecution and perhaps even lawsuits for other kinds of misconduct.

And that, in my mind, can only be a good thing.

In most states, social workers operate under the umbrella of absolute immunity. This means, that with the exception of criminal conduct, social workers are immune from liability for their deeds, even if they were done with bad intentions. If the door is opened, even slightly, so that workers can be punished for their wrongdoings, it will make them all think twice before they make their decisions.

Sure, it will also prompt a lot of ass-covering moves as well, but perhaps, just perhaps, it might make workers wake up to the importance of what they do.

Interestingly enough, SocialWrkr24/7 blogged about this story as well, and she has some interesting things to say:

If I do not do my job – skip homevisits, don’t talk to children privately away from their caregivers, let referrals sit idle on my desk or am dishonest about my actions to my supervisor…

I am being negligent.

If a child dies because I neglected to do the things that could possibly have prevented abuse or neglect…

I will have allowed that death.

But what she says at the end of her post I think is absolutely killer:

I hope that every person who puts in an application...

goes on an interview...

and accepts a job in child welfare...

considers consequences of not doing the job well.

Our children are worth it.

I hope it will one day be so.

Improving the Foster Care System - Part XXI

On Wednesday, Cindy over at Big Momma Hollers wrote:

Tony and Scotty had been trading hatefulness for a week now, it blew up while I was gone, a major fistfight ensued, fortunately Yolie had the five older boys there to pull them apart, but Mr P raged on for the remainder of the day. Ever felt your own blood boil?

We had a much worse incident later, one in which I plan to go to juvenile court and file assault charges.

I sat despondently on Lily’s floor, as I was helping her clean her room, so tired of violence and aggression, angrier still at a broken system in which parents like me are expected to live with this level of danger, that we must’ve asked for it by adopting older children. Sucks to be you, Big Mama.

This is a huge problem with the foster care system. Sometimes, it places violent or dangerous children in adoptive homes, and those homes aren't prepared or able to deal with the levels of violence or danger these children create.

Although some might argue that this isn't a problem with the foster care system, but rather a problem with post-adoption support, I argue that this is a problem with the foster care system, because some of these children ultimately find themselves back in care.

If you roam around the foster and adoptive parenting blogs, you'll find a number of families who have had to disrupt or dissolve their adoptions. Some parents, unable to keep their children safe, find themselves on the receiving end of child neglect or abandonment charges, because they can't control their uncontrollable kids. Exactly how do you prevent a child from sexually perpetrating on another child if they are bound and determined to do it? Likewise, how do you prevent a violent child from seriously injuring his sibling?

The truth is, you can't. Sure, you can set up door alarms and keep kids separate and supervised, but if a child is really determined to make trouble, he's going to wait until that one moment, when your back is turned for a second, to make his move.

So to improve the foster care system, we need to improve the supports provided to foster and adoptive parents. Respite care should be widely available and free or low-cost. Mental health services should be easily and quickly accessible. Funding should be available for children to go to residential treatment centers without forcing families to choose between financial ruin or dissolving their adoptions.

But for the most seriously-troubled children, adoption dissolution should be an option. It shouldn't be an easy choice, as we don't want children to be sent back to foster care for trivial reasons, but it should be available just the same. The idea of a forever family is a myth for many of these kids, anyway. If they are violent, mentally ill or dangerous, sometimes their parents find themselves in court facing termination of parental rights.

Parents shouldn't be punished for taking on kids that turn out to be much more troubled than originally thought. I think that most adoptive parents go into the system with the right motives, but sometimes things don't work out. In the cases where the children are violent, criminal and/or mentally ill, there ought to be a way for those children to get the services they need without destroying their new families in the process.

Improving the Foster Care System - Part XX

Today's installment in my series Improving the Foster Care System, looks to improve basic safety for foster parents, social workers, and just about everyone involved in the foster care system.

My idea for improvement this week?

Arm social workers.

Every social worker who has contact with foster children, birth parents, the court system or foster parents should be required to carry a sidearm. Each worker should have to pass a monthly recertification test to make sure that his or her shooting skills are up to par.

Why should we do this?

To make sure that workers are safe from dangerous and violent people. If a worker is armed, she can protect herself in all of the most dire circumstances.

But even better, if a child, birth parent or foster parent gets too out of line, she can simply "take care of the problem" herself, using her highly-trained professional judgement. With a sidearm, she literally can serve the role of judge, jury and executioner, and as a society we won't have to worry about all the expense of court hearings and argumentative lawyers slowing down the process.

I predict that allowing social workers to behave like the law men of the old wild west will streamline the foster care system and get things in line very quickly.

* * *

Oh, did anyone happen to notice today's date?

April Fool's Day.

Improving the Foster Care System - Part XIX

Hat tip to Micky for sending me this article from MSNBC:

Welfare Workers Charged in Girl's Death

Two child welfare workers have been charged in connection with the death of a 4-year-old girl they were responsible for monitoring, and authorities said she "might be alive today" if they had done their jobs.

Marchella Brett-Pierce weighed just 18 pounds when she died Sept. 2. Authorities said she was tied to her bed and starved, beaten and drugged.

Brooklyn District Attorney Charles J. Hynes said Damon Adams, the caseworker who had been assigned to her case before her death, and Chereece Bell, his former supervisor, are charged with criminally negligent homicide, endangering the welfare of a child and official misconduct.

This case is another horrific example of the child welfare system failing to do its job. It's cases like these that make me think we should abolish the system entirely. If children are going to die when they are supposed to be supervised by authorities, then clearly kids aren't necessarily any better off than if they'd been left alone.

I find myself wondering this, since the system manages to do so much damage to birth, foster and adoptive families already. If the system that's supposed to protect kids fails at it so miserably, and manages to destroy the lives of innocent people whose only crime was to be anonymously accused of wrongdoing, perhaps it simply shouldn't exist at all.

Now I know that this is an extreme case. Unfortunately, it happens too frequently to be acceptable, even in our local area. There was a case not too long ago where a child that was under the watchful eye of social workers ended up being murdered by a relative caregiver.

I realize that there were probably a lot of reasons, in this particular case, why the workers involved didn't do their jobs. Maybe their caseloads were too high, and there weren't enough hours in the day to cover all families they were supposed to supervise. Maybe the economic crisis and state budgetary problems left the entire department with too many cases and not enough staff.

Or maybe, just like postal worker Newman in the television show Seinfeld who hid mail in the basement instead of delivering it, they were just lazy.

Clearly the two workers involved were aware that they had screwed up. They attempted to falsify visit records after the child died. Instead of admitting, right off the bat, that they'd missed checking in on the child, they tried to cover their tracks and pretend to have made visits that were never made.

Now as much as I dislike social most workers, and I despise these two in particular for not doing their jobs, I'm not sure that I agree they should be prosecuted for criminally negligent homicide. It's true they did not do their jobs, but I'm not sure that justice is served by holding them accountable for a death that was caused by the child's grandmother.

So how do we prevent this from happening?

Again, the issue comes down to one of money. If the child welfare system was properly funded:

• We wouldn't have jobs that should be performed by LCSWs being done by untrained hacks.
• We wouldn't have social workers making decisions based on expediency, so a kid can be jettisoned from their caseload.
• We wouldn't have such high turnover because good workers would stay because they were being adequately compensated.
• Bad workers wouldn't stay, because management would have the ability to pay competitive wages and benefits to attract the really good people.
• Most importantly, kids in care would get the necessary services and treatments they need, and the foster families who care for them would be motivated to do a good job because they'd be properly trained and compensated.

Perhaps this sounds really extreme, but we as a society wouldn't want to pay for city garbage service that charges to pick up the trash, but then doesn't actually empty the dumpsters. As soon as the garbage started piling up in our streets, people would complain.

So why is it, when kids start dying because social workers don't do their jobs, nobody says a word?

Update to "Do Social Workers Need Search Warrants"

A few weeks ago, I (FosterEema) posted about an interesting case now before the United States Supreme Court. That case, Camreta v. Greene, confronted the issue of whether, and when, social workers need a search warrant to interview children in a school context.

For the legal eagles in the crowd, you can read a transcript (PDF) of the oral argument which took place before the Supreme Court, or listen to a recording of the argument.

At this point, while everyone waits for the Supreme Court to issue its opinion, the $64,000 question is how the Court will rule. Based upon my reading of the transcript, here're my thoughts:

First of all, the Justices seemed really uncomfortable with a blanket rule that would require social workers to always obtain search warrants before interviewing children. John Kroger, the attorney arguing for the social worker and sheriff's deputy, made the statement that in many cases it would be impossible to establish probable cause to get warrants without talking to the kid because "the child is usually the only witness that is available to the government". Therefore, he argued, reasonable suspicion - and not a warrant backed by probable cause - should be the legal standard for interviewing children.

However, the Court also spent a great deal of time on a more foundational issue: whether or not this appeal is even something they can decide. Under Article III of the United States Constitution, the courts cannot decide a case when there is no meaningful action they can take to benefit the party appealing. This is a legal doctrine known as "mootness", which stems from the requirement that courts only decide matters where there exists a "justiciable case or controversy".)

Here, the Supreme Court expressed considerable doubt that a justiciable case still existed. S.G., the minor in this case, is now 18 and no longer residing in Oregon, so her life is unaffected by the outcome of the appeal. And, since the lower court already granted social worker Camreta and Deputy Alford qualified immunity from liability, the Supreme Court's decision - whatever it ends up being - will change nothing for them, either. Given this, the only possible difference the Supreme Court's ruling could make would be to clarify the legal standard for the future, and several justices seemed reluctant to tackle that issue here.

So, what are the options available to the Supreme Court? I see at least four potential outcomes:

1. The Court could agree with the Ninth Circuit's decision that search warrants are required before interviewing a child at school. Based on the tenor of the argument, I'd be very surprised if the Court did this.
2. The Court could reverse the Ninth Circuit's decision on the merits, thereby setting a rule that search warrants are not required in child welfare investigations. I think this is also unlikely.
3. The Court could withdraw its grant of certiorari as improvidently granted. Essentially, this would be the Court saying "we shouldn't have agreed to hear this case, so we're going to pretend we never did that and let the lower court's ruling stand."
4. The court could issue a vacactur order back to the Ninth Circuit under United States v. Munsingwear, Inc.. I'll let you read this detailed article for a fuller explanation of what vacatur and the Munsingwear decision are all about, but the short version is that it would throw out the Ninth Circuit's decision mandating warrants and return things to the way they were without actually deciding the issue of whether and when warrants are needed.

To be clear, the difference between options #3 and #4 is what happens within the Ninth Circuit's jurisdiction. Both outcomes would defer the establishment of a blanket rule about search warrants, but under a vacatur, the Ninth Circuit's decision would be erased entirely. By contrast, if the Supreme Court withdraws the grant of certiorari, no national rule would be established, but the Ninth Circuit's requirement for search warrants would remain law within the states under its jurisdiction.

What's going to happen in this case? If I had to guess, I'd say this last option - vacating the Ninth Circuit's decision under Munsingwear is the most likely option. Although the Supreme Court Justices expressed considerable doubt that the Ninth Circuit's decision mandating search warrants was correct, they definitely seemed to feel that this might not be the right case from which to create a blanket rule. Vacating under Munsingwear would signal agencies within the Ninth Circuit's jurisdiction that they need not follow the search warrant rule, while kicking the larger issue down the road to a case with clearer facts and a justiciable controversy.

I'll update you all again when the Supreme Court issues its ruling.

I Still Think Neglect is Better than Foster Care

A couple of weeks ago, I wrote that I thought that we should eliminate neglect as a reason to place children in foster care. Not surprisingly, a few people disagreed with me. One of those who disagreed is my blogging buddy Baggage, who wrote about this topic on her blog.

In her post, she wrote:

Foster Abba questions whether being in foster care is worse than being neglected. And while being in foster care isn’t great and my children have suffered the loss of their birthparents, the effects of their neglect still remain. Stargirl is still significantly smaller than her peers. As a result of her food neglect, she still, four years later, has anxiety over when food is coming and how much she will be allowed to eat. Both of my children are afraid to sleep with the lights off. Stargirl had to have extensive dental surgery where they removed many of her back baby teeth. She suffered hearing loss from untreated ear infections that required ear tubes. This delayed her speech. She learned to walk late and she still has gross motor skills. Although they are in regular classrooms now, they still struggle with keeping up with their peers in terms of academics and social skills and this is AFTER four years of intensive work on my part to get them up to speed.

I have to say that as much as I respect and care about Baggage* I still think that neglect is better than foster care.

Now it might not be true for all kids. Certainly Baggage's kids had a better foster care experience than most children. They weren't bounced around from foster home to foster home, nor were they further mistreated by abusive or neglectful foster parents. Danielle's experience is similar -- she landed in one foster home and stayed until she was adopted. That's not a bad experience, and certainly the experience of these three kids is better than being neglected.

The problem is, our situation is just not the norm for foster children.

Most kids aren't lucky enough to land in one foster home and stay until they go home, are adopted, or age out. Most kids are bounced around through a series of homes, some of which are uncaring at best, and abusive at worst.

When I hear stories like the ones that LT and Growing Up Lost share, I really believe that in many cases, being abused and neglected by the devil that you know is better than being abused and neglected by the devil that you don't.

Now don't get me wrong -- kids shouldn't be abused in foster care any more than they should be abused at home. Unfortunately, there's a big difference between the way the world should be and the way it really works.

The reality is that there are some really sick, messed-up foster parents, just like there are sick, messed-up birth families. There was a case in our local area, not too long ago, where a long-time, and well-respected foster parent was accused of doing some terrible things to the children in her care. I'd met the woman, though I can't say that I knew her well, and the allegations didn't match up with what I thought I knew about the woman.

Did she do it? There's no way to know for sure, but there were corroborating statements made by multiple witnesses. The case is still pending, and no doubt it will be a long time before the case is finally settled. If she's innocent, then this is just another example of how false allegations can ruin someone's life. If she's guilty, then it's another situation that feeds the stereotype that all foster parents are bad.

What I do know is that the outcomes for foster children aren't good. I also realize that it's often hard to determine if the problems foster children suffer are caused by being in foster care, or caused by the abuse or neglect they suffered before they came into the system. What I do know, is that many of the foster care alumni I've spoken to have said that they would have rather stayed with their abusive or neglectful birth family than to be abused and neglected by strangers.

If there's a choice between a child being neglected by their birth family or going into foster care, I still think that the neglect is better, only because the foster care system can't guarantee an outcome that's any better than what a kid might have had if they'd stayed at home. I know that goes against everything we've been taught as a society, but I think it's the reality. We can't fix kids or families by grabbing children and putting them in foster care.

As much as I'd like every foster child's experience to be like Baggage's children, where kids are placed with one good and caring home, the reality is that's not what usually happens. Kids suffer multiple placements, disrupted attachments and sometimes even more abuse and neglect in the homes that are supposed to protect them.

So I think that kids will do better, even neglected, by the devils they know, rather than the ones they don't.

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* I think Baggage is completely awesome. She sent Danielle a much-appreciated and needed gift a few years ago, and her kindness and generosity has not been forgotten.

Improving the Foster Care System - Part XVIII

In response to Improving the Foster Care System - Part XVI, Process wrote:

One problem with these "Improving the Foster Care System" posts of yours is that you don't really know the system. Yes, you've had some experiences with it, and certainly you have some legitimate comments to make about that experience. But when you write these posts, you make assumptions about the way the system works that just aren't true, at least in my state.

The biggest mistake you make in these posts is that social workers make the decision to remove children. I know this isn’t the case in my state, and I can’t imagine that it is the case in any state—the individual liability would just be way too high. Instead, the decision is made by a group of people at different levels within the agency. And, although you must know this, you forget to mention in your posts that the legal system is also involved in all removals. Now, I’m not by any means suggesting that having the legal system involved makes everything right, but what I am telling you—reminding you, since there is no way you could not know this—is that there is a system of checks and balances in place that prevents removals from occurring simply at the whim of individual social workers.

Process actually wrote a much longer comment, much of which I will be addressing in future Improving the Foster Care System posts. She had a lot to say, much of which does not match our experiences or the way our local system works.

I should probably point out that I'm not just writing about the system from the perspective of a disgruntled former foster parent. FosterEema has worked from within the system, so she's seen firsthand how some decisions are made.

In our county, social workers very much do make the decision to remove a child, especially in after-hours situations. In our child's case, there was not a committee that made a reasoned and informed decision. Although the worker's supervisor was probably notified, the worker herself was the one to make the judgment call.

In our state, the law is very clear. Workers do not have to consult with their supervisor or the court to effect a removal if they feel there is reasonable cause to believe that a child is in danger. This alleged danger can include physical, emotional or sexual abuse, or neglect. Furthermore, there's nothing in our state's social services regulations that require a worker to get her supervisor's approval before acting. The social worker has to document why she removed the child, but she doesn't have to get her boss' okay before she does it.

In our state, and in most of the country, workers have something called absolute immunity which protects them from liability in the event that they make a bad call. Perhaps in other states workers exercise this immunity with a bit more caution, but in our area workers know that they can pretty much do what they like, as long as they stay within the confines of the law.

A social worker's immunity does not protect her from criminal prosecution in the event she crosses the line and does something illegal. Still, the threat of prosecution doesn't always keep social workers honest. In our case, we have documented evidence that unequivocally proves a worker committed perjury, but the Court opted to ignore her conduct.

As for the checks and balances that are supposed to be provided by the court system, the social worker doesn't have to file a dependency petition until 48 hours after the removal. By then, it's too late. The kids have already been taken, and the emotional damage has already been done.

It's fairly common for a social worker to remove a child and for that child to be returned to his or her birth family at the first court hearing. FosterEema has seen it happen with a number of her cases, and we remember getting a call about a potential foster placement, only to have the worker later call us back saying she wouldn't need the bed after all. As I recall, she grumbled quite a bit about the judge's "bad" decision to return the teen girl to her family.

I'm glad that, at least in Process' state, there is a system of checks and balances that prevents children from being removed in the first place. In our state, unfortunately, there is not. Here, we clearly have a system that removes the kids first, and asks questions later.

During the first 30 days a child is in foster care, there are a number of hearings held (typically at least three) to determine whether or not a child will stay in care. In a significant portion of these cases, the kids are returned during that initial 30-day period.

I have to ask the question, are kids better off for having spent 30 days in foster care, only to be returned home?

My answer to this, of course, is no. There's no way a child is going to be better off having been removed from his parents for a month and then returned. It's all well and good that the child made it back home, but the psychological damage has already been done. The entire family has been traumatized, and I don't see how this can be good for anyone, especially the kids.

So how do we improve this part of the foster care system? I think that we have to improve the system of checks and balances before a social worker swoops in and takes the kids. Cases should be reviewed, not only by workers and their supervisors, but by people who aren't routinely involved with the system. I think establishing a rotating volunteer review board of community members would help immensely. If people from outside the system get some transparency into what's going on, I believe things will change.

I also think that if community volunteers could see what's going on, there would be less opportunity for abuse. If community members could see that a mother was passing her drug tests, it would give the worker less wiggle room to lie in court and say that she wasn't. On the other hand, if they could see that a mother was messing up, it would increase people's confidence that the system was making good decisions. Having community oversight would mean that there would be less opportunity for social workers (and their managers) to abuse their power.

In the addition to the checks and balances provided by community oversight, the system could be improved by giving the state's Foster Care Ombudsman some teeth. When we received notice that Nasty Number Seven planned a removal, one of our first calls was to the Ombudsman's Office. There, we talked to a very nice and very sympathetic person who basically told us there was nothing she could do. She told me that she received calls all the time from foster children, birth parents and foster parents about out-of-control workers, but they had no enforcement powers at all. She said that they could call up individual workers or supervisors and advise, but in her experience that usually only made bad situations worse.

Now an ombudsman is supposed to be a trusted intermediary and a mediator, but if nothing she recommends is binding, there's not a whole lot of point to the office, is there?

Bottom line, if we want to improve the foster care system, we need to strengthen the checks and balances that prevent children from being taken into the foster care system in the first place. I think there are enough disturbing tales from unhappy foster care alumni that clearly document the misery of being placed in foster care. If you aren't convinced, go read Growing Up Lost or I Was a Foster Kid for a while, and see if they don't change your mind about how rotten the system is.

But really, strengthening checks and balances isn't just a win for a kids. It's a win for the system for two reasons: 1) it strengthens everyone's confidence that good decisions are being made, and 2) it potentially reduces the workload for everyone. If a kid isn't taken into care in the first place, it's one less case some worker has to handle.

And that, clearly, is a win for everyone.

Improving the Foster Care System - Part XVII

In response to Improving the Foster Care System - Part XVI, where I advocated that we eliminate neglect as a reason to remove children from their parents, marythemom wrote:

Maybe as a reason for removal, but definitely neglect needs to continue to be addressed. I still remember taking care of my 2 year old nephew. His dad didn't know he still needed to be supervised in the tub. My nephew was used to getting his own food (mostly cereal) rather than having others prepare food for him. He didn't seem to care about the change in caregivers (he's not RAD - just very easygoing). That Summer we discovered he was allergic to bandaids, peanut butter and corn. No one knew - even though he had fairly severe reactions (poor thing was trying to potty train and spent most of his time trapped on the potty with diarrhea).

And Carmel wrote:

Here is the grey area though...are the parent's poor and not able to afford food and housing because 'Dad' refuses to put any effort into finding a job and the Mom has a job which covers barely the basic and everytime they come into a large amount they buy TV's, Xboxs, and fun things for themselves. These parent's are generally good people but they cannot or will not make the sacrafices needed to really provide for their kids.

Both Mary and Carmel have a valid point. However, the problem is that the damage the foster care system does can often be worse than being neglected. Certainly, if a child can go to a better-functioning relative, that might be a better option, but if the choice is between being neglected and being sent to the foster care system, I'm not sure that foster care is always the wise choice.

In my post Improving the Foster Care System - Part XII, I mentioned a paper written by a Georgetown University law professor that examined why confidentiality within the foster care system creates problems.

What I didn't fully examine in that post was that Professor Fraidin's paper also mentioned that many mistreated children would be better off left at home.

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. [emphasis mine]

So given this information, how do we improve the foster care system?

First off, just like I advocated last week, we stop removing kids for neglect. Yes, I absolutely agree that neglected children suffer their own private version of hell, but it's not the same hell that children who are actively being abused suffer.

So what do we do about neglect instead?

Provide family supports that address the neglect.

If a family lives in sub-standard housing, help them with that. If they are unemployed or under-employed, help them find a job or give them job training. If they have poor parenting skills, offer them parenting classes. If they or their children have unattended medical needs, provide them. If the parents have mental health or substance-abuse problems, address those too.

Help them for sure, but don't take someone's kids away because they aren't winning a parent of the year award. Don't punish parents by listing them in the child abuse databases simply because they need help. There's a big difference between someone who actively abuses their kids and someone who simply isn't capable.

Finally, we have to realize that there are going to be some families who simply can't be helped. We have to realize that there will always be a certain percentage of the population who can't or won't do better. The question then becomes whether the damage a child will suffer from neglect would be worse than the damage of having family bonds severed and being sent to foster care.

It's a hard question to answer, but I really believe that unless a child is in real danger, the status quo is probably less damaging.

Improving the Foster Care System - Part XVI

Several studies have shown an undeniable link between poverty and child welfare investigations. It seems that the lower your income is, the higher the chances that your children could end up in foster care. If you happen to be poor and of color, your chances are even worse.

So for this week's installment of Improving the Foster Care System, I advocate that we eliminate neglect as a reason to remove children from their parents.

Neglect can be defined as, "the negligent failure of a person having the care or custody of a child to provide adequate food, clothing, shelter, medical care, or supervision where no physical injury to the child has occurred."¹

That definition seems awfully subjective, doesn't it?

Now there's clearly a big difference between parents who are deliberately depriving their children, and parents who simply are too poor to afford decent (or sufficient) food, clothing, shelter, etc. The former is clearly abuse; the latter is not.

In 2008, 14.6% of U.S. households were found to be food insecure. This means that though these families are not starving, they sometimes go hungry. Often, they run out of food and money before the end of the month. Even when these families aren't going hungry, they are often skimping on groceries and end up buying the cheapest (and often the least nutritious) items.

If a social worker shows up on the 25th of the month, would there be adequate food in this family's refrigerator?

Probably not.

If you are a low, or even a moderate-income family without health insurance, have you found yourself in the position of having a sick child and being reluctant to take him to the doctor or Emergency Room, knowing you can't afford the expensive medical bill?

If a social worker showed up because your child missed too many days from school and you hadn't been able to take him to the doctor because you couldn't pay for it, would she find you as being medically neglectful?

Probably.

If you are living in substandard housing, have a landlord who won't make necessary and routine repairs, and are unable to move because you can't afford it, what happens when a social worker shows up and sees your home has holes in the floor, leaks in the roof, and is infested with cockroaches? Will she call up your landlord and demand that he fix the house?

No, she'll come and take your children away.

If you are poor, then you run the real risk of losing your children, not because you have done anything wrong, but simply because you aren't able to afford the lifestyle that your social worker thinks you should be living. If you have lost your job and end up homeless, a social worker will take your kids away because you have failed to give them adequate shelter.

Again there's a big difference between a parent who deliberately withholds needed food, clothing, shelter and medical care from a child, and one who simply cannot afford to provide it. If a parent is living in the same conditions as the child, then that shouldn't be considered neglect.

Of course the biggest problem with neglect is that the definition is completely subjective on the part of the social worker. There is no legal, measurable, objective definition. In fact, our country uses something called "community standards" to measure these things. If your house, your standard of living, and the food in your refrigerator is substantially less in quality than the invisible "community standard," then you run the risk of losing your children.

And again, it's subjective. One social worker might not have a problem with ten people living in a one-bedroom apartment. Another might.

Since poverty is a huge predictor of whether or not one will be investigated for neglect, it makes me wonder if the system is simply acting as a Robin Hood for children. Instead of stealing money from the rich and giving it to the poor, I wonder if neglect cases are simply a way for the child welfare system to steal children from the poor and give them to the more affluent.

Is that fair? Is it right? Is it just?

Of course not.

We need to eliminate neglect as a reason for taking children into foster care. There's very little difference between what a social worker would call neglect, and a sensible person would recognize as intractable poverty.

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1. Keane Law Firm

Do Social Workers Need Search Warrants?

I'm making a (relatively rare, these days) guest post today, with a rundown an interesting case that's being argued today before the US Supreme Court. The case, or rather a pair of cases arising from the same set of circumstances, will help bring some guidance to an important question for the child welfare system: When do social workers, talking to suspected abused children, need a search warrant?

The facts which gave rise to this case, titled Camreta v. Greene, are fairly straightforward and mostly undisputed. A child welfare referral was made in Oregon, alleging that S.G. and K.G. (both minor girls) were sexually abused by their father. Bob Camreta, a child welfare worker, and deputy sheriff James Alford, visited S.G.'s elementary school and pulled her from class to interview her. During most of a two hour interview (conducted with an armed cop in the room) S.G. denied that any abuse had taken place. Toward the end of the questioning, S.G. admitted to sexual abuse, although she said later she only did so to get the questioning to stop.

Armed with S.G.'s admission, S.G. and K.G. were taken into emergency custody and were given a medical exam to look for signs of sexual abuse. The girls' mother, Sarah, asked for and was denied permission to be present at the medical exam, which revealed no clear signs of sexual abuse. When the dependency petition was finally heard, faced with a lack of physical evidence and S.G.'s recantation of her confession, DHS requested and juvenile court ordered the children returned to Sarah's custody.

Sarah filed a civil rights lawsuit (under 42 USC 1983) on her own behalf and on behalf of her children. She argued, in essence, that the combined police/law enforcement interview violated S.G.'s Constitutional rights because it was conducted without a warrant, and that her parental rights were violated by not being permitted to be with S.G. during the medical exam when she was not suspected of any wrongdoing. (There was also a claim that Camreta had misrepresented certain facts in his dependency petition, but since the petition was ultimately dismissed, that was an issue of secondary importance with regard to the appeal.)

The Ninth Circuit Court of Appeals, in a decision written by Judge Marsha Berzon, concluded that Sarah's Constitutional rights, as well as those of S.G. and K.G., had been violated. Judge Berzon wrote that:

We hold, as we did in Calabretta, that “the general law of search warrants applie[s] to child abuse investigations.” Once the police have initiated a criminal investigation into alleged abuse in the home, responsible officials must provide procedural protections appropriate to the criminal context. At least where there is, as here, direct involvement of law enforcement in an in-school seizure and interrogation of a suspected child abuse victim, we simply cannot say, as a matter of law, that she was seized for some “special need[ ], beyond the normal need for law enforcement.”

In short, applying the traditional Fourth Amendment requirements, the decision to seize and interrogate S.G. in the absence of a warrant, a court order, exigent circumstances, or parental consent was unconstitutional. We follow the lead of our sister circuits and hold that in the context of the seizure of a child pursuant to a child abuse investigation, a court order permitting the seizure of the child is the equivalent of a warrant.

As regards the other issues, Judge Berzon ruled that, since Sarah was not suspected of any wrongdoing, it was a violation of her rights and the rights or her children to exclude her from being present at S.G.'s medical examination, and that her rights had been violated by having her children removed from her custody based without good reason (ie, because she was not suspected of any wrongdoing).

However, Judge Berzon also ruled that the Deputy Sheriff and social worker were entitled to qualified immunity with respect to the claims about the interview which was conducted without a search warrant. Judge Berzon explained that, because it was not clearly established at the time of Camreta and Alford's interview that search warrants were required when conducting a "custodial interrogation" of a child in the school setting, Camreta and Alford could not be held liable for damages.

So, how'd the US Supreme Court get involved? Curiously, both Camreta and Alford appealed Judge Berzon's decision, and they argued both that a search warrant shouldn't have been required prior to conducting their interview of S.G. and that they should have been given absolute immunity, rather than qualified immunity, for their actions.

The $64,000 question is this: Camreta and Alford essentially won in the Ninth Circuit, in that Judge Berzon's ruling gave them a free pass, in the form of qualified immunity, from any damages for their actions. So, why are they appealing, and why are they appealing BOTH the search warrant issue and the qualified immunity issue? Here's what I think: I'm betting that Bob Green very much would like the Supreme Court to decide that child welfare workers needn't bother with pesky details like search warrants, which require would probable cause - not mere suspicion - that child abuse has occurred. I'm betting he'd also like the Supreme Court to say that child protective workers are more like prosecutors than bureaucrats, and hence that they should have absolute immunity from consequences for their actions. Even (or especially) in cases like this one, where misconduct was alleged.

Jennifer Clark over at SCOTUSblog has an excellent rundown of the arguments that were made in the legal briefs, so I won't rehash that here. Instead, I'd like to offer my thoughts about why this case was appealed in the first place, and what I hope the Supreme Court will do here.

Personally, I believe child protective services workers should need a search warrant, and probable cause rather than mere suspicion, to interview a child outside of her/his parents' presence. Probable cause isn't an especially high bar, so it seems likely to me that requiring a warrant isn't likely to handicap CPS much where real abuse is happening. But it will unquestionably restrict the ability of social workers to go rooting in people's private lives based on unsubstantiated suspicions or personal animus. I also think, of course, that social workers should not have absolute immunity from the consequences of their actions or misconduct. There's too much abuse of discretion in that system already without giving social workers a permanent 'get out of jail free' card and a blank check to go fishing whenever they'd like.

Apparently, I'm not the only one who thinks this, either. A host of agencies, individuals, and legal professionals, including the Juvenile Law Center, New York University School of Law Family Defense Clinic, and the Pacific Justice Institute, filed amicus curiae briefs in support of Sarah Greene with the Supreme Court. By contrast, and not surprisingly, the National Association of Social Workers and a number of other agencies filed briefs in support of Mr. Camreta and/or Mr. Alford. In all, 29 different groups filed amicus briefs - 8 in support of Camreta or Alford, 18 in support of Ms. Greene's position, and 3 "in support of neither party".

What's the Supreme Court going to do? Who knows. The tenor of the questioning in today's argument may offer some clue, and I'll update this post with a link to the transcript and recording of the oral argument when they're available. However, the outcome has the power to dramatically change the legal landscape in which child welfare investigations operate, so suffice it to say there are a great many of people with either a personal or professional interest in the child welfare system who will be watching today's argument with a great deal of interest.

If you're one of the legal beagle types who, like me, enjoys reading case briefs, you can find them on the SCOTUSwiki pages here: Camreta v. Greene, Alford v. Greene

Improving the Foster Care System - Part XV

As I've mentioned before, our state does not require social workers to be licensed if they are going to work in the Child Welfare system. Although a real social worker who possesses a Master's Degree and a license would probably take exception to the practice, anybody who manages cases, makes decisions about birth parents, foster parents, adoptive parents and children generally gets called a "social worker." Now the person's business card might show a different title, but in the day to day doings, these people are all lumped into the same category.

They are "social workers."

And this gets to the point of this week's Improving the Foster Care System post. I believe that every worker should be a licensed social worker. No more should we allow warm bodies with Bachelor's Degrees in Basket Weaving to make life-altering decisions for children.

I have several reasons for this:

• Workers have absolute immunity. In our state (and I suspect many others) workers have absolute immunity which protects them from liability. If they make a bad call, cause a family undue or unnecessary distress, place a child in a foster home where she is molested, or even killed, the worker is protected from lawsuits. Injured parties cannot go personally after a worker who has hurt someone in the course of her work. Even if a worker deliberately misrepresents the truth, the law gives her absolute immunity from lawsuits. As a result, workers have a huge amount of leeway in what they do, and it rarely comes back on them. With the exception of criminal conduct, workers get away with pretty much everything they want to do.
  
  
• Supervisors almost always back their subordinates. In our experience, complaining to a supervisor about a worker's conduct rarely goes anywhere. If a worker is truly being unethical, unfair, or just a plain old bitch, there's very little point in complaining. The boss will always stand by her employee, even when she's dead wrong, because that's how the system works.
  
  
• The courts do not sanction bad workers. In our case, even when it was clear that Nasty Number Seven wasn't telling the truth in court, nothing bad happened to her. I asked my attorney why the judge wasn't smashing her for perjuring herself, and he replied that the courts are very reluctant to nail people for fibbing - unless the people are birth parents.

So if a worker is immune from consequences for her bad decisions, knows that her supervisor will back her up, and is unlikely to get in trouble with the judge, what's to keep her honest? Hopefully, it's her good character and morals that keep her in line. Unfortunately, as many of us jaded former foster parents have learned, many workers do not possess the character and morals that the job truly requires.

I think workers should be licensed because it gives birth parents, foster parents, adoptive parents and children an independent, third-party place to complain. If a worker is truly being unethical, complaining to the state licensing board might get someone's attention.

If you have a really bad doctor, dentist or therapist, there are licensing boards to which you can complain. Even public school teachers in our state are licensed, and a well-founded gripe to the right agency can land the teacher in the unemployment line. The same should be true for social workers.

Given that social workers have so much discretionary power over the lives of others, a system where they have no accountability for their decisions and actions is clearly a system that is broken.

Improving the Foster Care System - Part XIV

Although I can't say that I know a huge number of foster care alumni, those I do know frequently talk about how many times they were bounced around in the system.  Most of the foster alumni I know were moved through many foster homes, group homes and even mental institutions, while different social workers drifted in and out of their lives.  They weren't told what was happening with their case plan, and they were often left wondering what would happen next.

To make the foster care system work for the kids in it, we need to cut down on the "bounce."

When I say "bounce," I am talking about the number of times that children bounce from foster home to foster home, from social worker to social worker, or from case plan to case plan.  It's confusing, it's disruptive, and it doesn't create much of a sense of stability for a child whose life has already been blown to smithereens.

So how do we do this?

Foster Homes

1. Reduce the reliance on shelter homes.  Put children directly into waiting foster homes, whenever possible.
2. When moving a child, make every effort to match the child's needs with the foster home's strengths and abilities.
3. If a child begins to have serious problems in a foster home, provide support to the foster family before the placement is disrupted.  Have appropriate training, interventions and respite available.
4. Pay foster families a living wage.

Social Workers

1. Increase the training social workers receive.  They should know what they are getting into before they accept their first case.
2. Reduce the average caseworker's load to a reasonable amount.  Make sure they have adequate time to do all their home visits and the myriad other things they do in a day.
3. Assign children to a permanent worker who will be with them through their entire stay in foster care.  Use resource workers to provide expertise in specialized areas when necessary.
4. Pay social workers a living wage.

Case Plans

1. Require social workers to be scrupulously honest.  This means that they must be honest in their dealings with birth parents, foster parents, children, service providers and the court.
2. Make social workers accountable for the number of times they move children.  The default assumption should be to leave the child where he is (preferably with his birth family if at all possible) before making a change.

Improving the Foster Care System - Part XIII

This week's installment on improving the foster care system focuses on an area that I haven't spoken much about in my previous posts.  Much of what I've discussed in earlier Improving the Foster Care System posts has covered allocation of resources and money for foster children and the families who care for them.

In this week's post, I'm going to discuss social workers.

I've received a lot of irritated responses to some of my previous posts (both on this blog and my old one) from social workers who have complained that I'm not exactly being fair in my assessment of them as a group.  So, before I go any further, I'm going to say that perhaps there are social workers who are well-trained, take their jobs seriously, and aren't simply in the business of snatching children. My comments here are reflective of the situation in my state and county, which may not be representative of our nation as a whole.

With that said, social workers need to be better trained.

In our state, so-called "social workers" who are employed by the state's child welfare system are not necessarily folks who possess an LCSW license or a Master's Degree in Social Work.  In our county, the minimum requirement is that workers have a Bachelor's degree.  Although it's preferred if these degree-holders have studied psychology or human services, the reality is that the Department does not care.  If you are a warm body with a degree in advanced basket weaving, they will take you, especially if you are bilingual.  The population of "real" social workers with licenses is far and away the minority of caseworkers.

The majority of the workers we had were perhaps well-meaning, but completely untrained.  Many of them were inexperienced and had only been on the job a few weeks or months before taking over our daughter's case.  They didn't know how to get things done, they didn't know how to follow procedures, and they often said or did things they shouldn't have said or done.  Many of these workers quickly found themselves unprepared or frustrated by the job and its accompanying low pay, and they quit.

During the roughly three and a half years Danielle was in foster care, she had a total of nine workers. The first four were temporary workers assigned to her case as it weaved its way through the initial removal, investigation, and legal processes.  The remaining five were assigned during the remainder of her stay in foster care and her subsequent adoption.

Out of that total, only one that we know of had a Master's in Social Work.  She was the best of the bunch, but unfortunately she didn't stay on our case very long because it was transferred to other workers.  The worst of the bunch, Nasty Number Seven, also had a Master's in something, though we never learned what her area of study was.

Clearly, a high level of college education does not a good social worker make.

We also had at least four workers engage in conduct that was, in our opinion, unconscionable.  One worker completely wrote off our daughter and wanted to move her strictly for racist reasons.  Another routinely missed appointments and completely lost another foster child's belongings. A third threatened to remove Danielle from our home if we didn't agree to adopt her, even though that decision wasn't yet ripe to be made.  The last of this bunch lied in court, misrepresented facts in her reports, and went out of her way to make our lives as miserable as she could for an entire year while our lawyer duked it out in court.

So how do we avoid these problems?

Social workers should be adequately trained.  They should be expected to take courses in ethics, tolerance, customer service, as well as their own internal policies and procedures.  They need to learn that lying and manipulating is unacceptable behavior, to be tolerant of other religions, cultures, races and sexual orientations.  They need to learn that people's schedules are important, and arriving two hours late (or not at all) to a scheduled appointment isn't reasonable.

In addition to training, managers need to pay attention to their workers' behavior.  If a worker is caught misrepresenting facts on a report or lying in front of a judge, she should be fired.  If a manager receives too many complaints about a worker being intolerant, rude, or frequently late, that worker should find herself on the receiving end of a reprimand.  Lousy, lazy, incompetent or ineffective workers should be culled.

But of course the ubiquitous "they" can't do that.  The working conditions are so lousy and the turnover so high that it is almost impossible to recruit good people.  People with excellent skills and high self-confidence don't stick around.  Those that remain are often the workers with weaker skills or insufficient motivation or self-confidence to look for a better job.

Another problem is that the few workers who have their Master's in Social Work don't usually stick  around very long.  They know that the job stinks, the pay is low, and they are only there to work the internship hours required for state licensure.  As soon as  they have their required number of hours, they move on to greener pastures.

Once again, this is largely a problem that can be solved by money.  If the state spent the money to train and pay social workers decently, we wouldn't have these problems.  But again, like so many other problems in the foster care system, nobody wants to pay what it costs to make the system right.

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/