Lifting the Veil Blog

The following was published in a number of national and regionally distributed sources in January 2000. It provides a critical historical perspective, and it is as timely today as the day it was written.

THE OMINOUS PARALLELS

We enter the new millennium with well over 500,000 of our children in one or another form of state-provided alternative care. An estimated 365,000 of our children are removed from their homes for their “protection” each year in these United States. They find themselves warehoused in foster homes, group homes, and institutions. When there is no room for them at the proverbial inn, they find themselves warehoused in prisons.

By all accounts, an ever-increasing number of our children are joining the ranks of what I have come to call “The Disappeared.” The term derives from Argentina, where a brutal political regime propped up for years by the United States provided for hundreds of thousands of innocents removed to destinations and fates unknown–their homes having been invaded by agents of the state during the darkest hours of the night.

The victims of this politically oppressive regime often found themselves interrogated, stripped naked, bound and shackled, starved, imprisoned, and beaten, often to the extent of mutilation. The whereabouts of many remain unknown to this day.

Once the helping facade of child protection is penetrated–its masquerade of benevolent intent stripped away–the parallels between these historical events and the current state of affairs in child protection are too striking to ignore.

In Sacramento, California, during 1997, Child Protective Services caseworkers were removing children from their homes at an estimated rate of 400 per month–up from a previous level of 200 per month during the previous year. Authorities were reviewing cases, which in some instances stemmed from five-year-old reports, and conducting random sweeps of homes late at night, without search warrants. The majority of the children removed in these midnight raids were not necessarily abused or neglected, rather they were determined to be “at risk” of abuse or neglect at some point in the future. The Sacramento Bee uncritically reported on these events as if to suggest that they make for sound public policy, having sent reporters to cover the raids in the company of police and social workers.

Similar trends are everywhere to be found. From Waco, Texas, comes a report that the number of children in state care has tripled over the last decade, with fewer people coming forward as prospective foster parents despite intensified recruitment efforts. In Ohio, State Auditor Jim Petro threatens a systematic review of foster care operations, his system swamped with nearly triple the caseload it had a decade ago. In Kansas, after privatization of foster care was undertaken in March of 1997, monthly court statistics reviewed a few months later show nearly double the number of “children in need of care” filings as compared to the previous year. In Wisconsin, the number of children needing regular foster care in Racine County has more than doubled in the first nine months of 1998 compared with the same period during the previous year.

The Oklahoma State Senate reports that the number of children living in foster care has increased by 46% since fiscal year 1990. A 12% reduction in the number of available foster homes has children spending more time in shelters, emergency foster care or group homes. The Naples Daily News reports that in the wake of a recent rash of child deaths, caseworkers in Tampa Bay are rushing to remove children who may be “at risk” of abuse. In Pinellas County, about eight times the normal number of children have been placed in shelters, while child removals in nearby Hillsborough County are up about 20%.

“Last year the number of children removed from parents due to severe abuse and neglect doubled from the previous year,” says Nancy DeWees, a former social worker with Child Protective Services and now as an assistant district attorney in the Tarrant County, Texas, Crimes Against Children Unit. “And we’ve continued that trend this year.” When pressed for answer as to what is responsible for the increase, she can’t venture a guess. “I don’t know,” she says. “I can’t account for it, but it’s not just a local trend. It is statewide.”

While paid apologists among the child protection lobby maintain that these children have been removed for their own protection, the reality is that the vast majority of these children have been removed from their homes without legal excuse or justification. As psychologist and author Seth Farber explains:

Only a small minority of these children have been separated from parents who are dangerous to them. The overwhelming majority have been separated from loving and responsible parents. One does not need to be a child psychologist to realize the devastating effect of removing a child from parents with whom he or she is deeply bonded.

A closer look at the numbers bears this out. Dana Mack, an Affiliate Scholar with the Institute for American Values and author of The Assault on Parenthood, notes that a 1986 federal study evaluating child welfare caseworkers found that up to two-thirds of “substantiated” cases of child maltreatment involved no actual wrongdoing on the part of parents. Many removals of children into foster care are “capricious actions of ‘preventive intervention’–undertaken on a caseworker’s presumption that though a child’s home situation poses no immediate dangers or deprivations, it might sometime in the future.”

In examining studies conducted by the American Humane Association during the mid-1980s, Mack found that half of the families child welfare agencies compelled to undergo therapeutic services for child maltreatment had never mistreated their children at all.

A recent report from the state of Oregon reveals a similar trend. Fully one-half of the children in its foster care system have been removed from their homes not because they have been abused or neglected, but rather because they have been deemed “at risk” of abuse or neglect at some point in the future.

This is not to say that the remainder has necessarily been removed for legitimate reasons. The Edna McConnell Clark Foundation points out that only 3 percent of the children in foster are there for reasons related to allegations of physical abuse.

A brief history

During the 1970s, critics charged during Congressional hearings that a foster care “industry” had developed. Stories were told of children shipped hundreds of miles away from their homes, only to be warehoused in large institutions and other inappropriate settings. The Department of Health, Education and Welfare, which at the time was charged with the task of providing oversight, admitted that it had no idea where the majority of the then estimated 500,000 children in foster care were. Thus came to be enacted Public Law 96-272, the Adoption Assistance and Child Welfare Act.

This federal legislation had been painstakingly crafted to address the unnecessary removal of an excessive number of children from their homes by child welfare agencies.The legislation provided, among other things, that “reasonable efforts” must be made to prevent the removal of children from their homes.

The legislation enjoyed wide bipartisan support, as the Boston Globe explains: “Religious conservatives were denouncing the breakup of families. Libertarians were attacking ‘child-snatching’ agencies that invaded homes. Liberals were accusing agencies of taking away poor minority children instead of giving their families needed services.”

Followed thereafter a series of legal actions against child welfare agencies, the majority of which were based on systematic violations of the Act. As of 1990, Congressman George Miller and the members of the Select Committee on Children, Youth and Families had counted over 45 lawsuits, which had been won by child advocates based on violations of the Act. As of 1996, class action lawsuits had been filed in 31 states, with 36 consent decrees overseeing the operations of child welfare and foster care systems. The most common complaints focused on noncompliance with family preservation requirements, while procedural safeguards, case planning, and placement quality were also frequently cited for noncompliance.

Few know the child welfare system as intimately as does former-Congressman Miller, who presided over the Congressional hearings leading to the passage of the Act. Miller explained that the child welfare system is a system, which “removes children without cause,” adding that reviews of their status are “perfunctory if not non-existent.” Children placed voluntarily frequently did not recieve reviews of their status, and they continued to be moved time and time again without determining if this was for their benefit.

It was precisely these conditions the Adoption Assistance and Child Welfare Act was enacted to address. Yet, child welfare administrators and their judges, to the continuing detriment of children and families, have routinely disregarded the law. “Reasonable efforts are not made in hundreds and hundreds of thousands of cases across the country,” explained Marcia Robinson Lowry of Children’s Rights, Inc., (formerly the Children’s Rights Project of the American Civil Liberties Union) during Congressional hearings held during the mid-1980s.

In pursuit of meaningful reform, advocates such as Lowry have scored many promising victories in the courts. In a legal action brought by Children’s Rights against the District of Columbia’s child welfare system, LaShawn A. v. Kelly, the United States Court of Appeals for the District of Columbia found that the agency had “consistently failed to provide services or otherwise use ‘reasonable efforts’ to prevent placement. The result has been an increased risk of arbitrary or inappropriate placements as well as an increased cost to the District.” Based on the case records of children in foster care as of December 1989, whose goal was to return home and who had entered into care through voluntary placement, the Court found the agency “had failed to provide services in 77% of their cases.”

One need look no further for evidence of the abysmal lack of service provision than to an Arkansas case of recent vintage in which a juvenile court judge ordered a caseworker to provide aid to a family in getting the utilities turned back on in order to prevent the otherwise unnecessary removal of a child from the home. The caseworker refused to provide the needed services, as it was against the policy of her agency to do so. As sociologist John Hagedorn explains: “The myth that social services provide ‘services’ is still useful to state legislatures who must provide funds, to a concerned public, and for internal morale.”

Returning once again to the District of Columbia, frustrated by lack of progress after years of litigation, child advocates succeeded in placing the District’s child welfare system into full receivership in 1995, making it the first child welfare system in the nation to come under the direct control of a Court.

How is it that a federal law to provide services to prevent unnecessary child removal may be so routinely disregarded? After all, judges oversee the removal of children from their homes by child welfare agencies. Sadly, the juvenile court judge in Arkansas who ordered that services be provided to a family in financial distress is something of an exception.

Professor of social work Duncan Lindsey explains that the special relationship between the juvenile court and the agency must be understood. “In many jurisdictions, the court and agency work hand-in-glove in the disposition of abuse and neglect cases. What the agency recommends, the court approves with minimal review, becoming, in essence, little more than a rubber stamp to the policies of the child welfare agency.” As a result, argues Lindsey, the juvenile court has become “a corrosion of the legal system that is slowly undermining the rights of poor families and undermining due process. “A recent review by the Office of the Legislative Auditor in California would bear this out. In 1995, the Los Angeles juvenile court went along with agency recommendations in 98 percent of the cases it heard.

At the heart of the ills afflicting child welfare agencies are perverse federal incentives that favor the continued removal of children from their homes and the destruction of families. As Kenneth A. Visser, Director of Family Preservation in the Michigan Department of Social Services explained to a Congressional Committee in 1991: “The current system of financing rewards us for foster care placement.” More to the point, as Joseph R. Pisani, representing the National Conference of State Legislators explained some years earlier: “You are paying us to do the wrong thing, and providing us with federal disincentives to do the right thing.” As a Santa Clara County, California, Grand Jury most succinctly explains: “the agency benefits, financially, from placing children in foster homes.”

Perverse federal incentives and the bureaucratic imperative for expansion and survival are not the only dark forces at work. “Influenced by moral beliefs, political ideologies, or child-saving fantasies, those with decision-making responsibilities sometimes fail to consider the psychological consequences to a child of removal from his family,” the Children’s Defense Fund explains in its comprehensive assessment of the child welfare system.

Kenneth Lanning of the FBI explains that many child protection workers may themselves have been abused as children, and that they carry the torch by welcoming other young women into “the sisterhood of the abused.” Marie Parente, a member of the Massachusetts Governor’s Blue Ribbon Task Force on Foster Care recently told Massachusetts News reporter Ed Oliver about a child protection caseworker who was so obsessed with the issue of child sex abuse that not only did she bring brochures on the topic of sexual abuse into her office daily, passing them out to co-workers, but virtually every case to which she was assigned resulted in a founded disposition of sexual abuse.

Many family advocates speak of encounters with caseworkers who are clearly dysfunctional–so obsessed with issues of child abuse that they see abuse everywhere they look. This point was not lost on a 1985 New York City Grand Jury, which went so far as to recommend that psychological testing be administered to all child protection workers to weed out those with the more profound psychological disorders.

These forces conspire to produce a variety of symptoms in the patient. Columbia University’s Brenda McGowan points out that the field of child protection is one which has been repeatedly attacked “for its failure to insure permanency planning, its inability to prevent placement, its failure to place children in need of protection, its inherent racism and classism, its anti-family bias, its violations of parents’ and children’s rights, its arbitrary decision-making procedures, the incompetence and inefficiency of its staff, its costs, and its mismanagement.”

The era to which she is generally referring is the 1960s. Little has changed since.

Shiela Kamerman and Alfred Kahn, of Columbia University’s School of Social Work, explain that the permanency planning movement has failed to provide the promise of permanence and stability to foster children, blaming it for adding another bureaucratic layer to an already fragmented system, thus contributing to rapid turnover and uncovered caseloads. Judith Fein and Anthony Maluccio, writing in the industry journal Social Service Review, liken the failures of family preservation and reunification as major components of permanency planning to the outcomes of de-institutionalization of the mentally ill. The racist proclivities of the child welfare system are borne out by the numbers, with one out of every ten children in Harlem having been removed into foster care. As recently as 1996, none other than Douglas Besharov, the founding Director of the National Center on Child Abuse and Neglect, described the current state of affairs in child protection as “a massive and unjustified violation of parental rights.” A comprehensive study conducted by the Children’s Defense Fund identified “a pervasive, implicit anti-family bias” shaping decisions at all points in the child welfare system. Lowry has testified as to the mismanagement in child welfare agencies being “astronomical” in scope, and the misuse of resources as “staggering.”

Against the backdrop of continued legal onslaughts, the child welfare system has grown by leaps and bounds, ever marching onward in its relentless crusade to destroy children and families. Many decades of time have elapsed over which countless efforts at reform have been made; yet few tangible results have been attained. As Miller observed some years ago: “This system has been sued and sued and orders have been issued and people have just continued on their merry way.”

Providing the appearance of reform-in-progress has itself become something of a game in the industry. Indeed, to the casual observer, the child welfare system would appear to be in a perpetual state of reform. The Children’s Defense Fund handily saw through this ruse, explaining that: “Piecemeal tinkering–a new training program here, some demonstration funds for preventive services there–will not work.”

Professor of social work Leroy Pelton echoes this concern, explaining that the current structure of the child welfare system is dysfunctional, and as such: “A fundamental restructuring of the system will be necessary before it can accommodate any large-scale expansion of family preservation and prevention programs and services.” Lacking such a restructuring, “any incremental approach or tinkering with the system in its present form will not change its focus from placement to prevention.”

The incessant piecemeal tinkering with the system serves only to strengthen it, even as it provides an intellectual trap for would-be reformers. “Just by calling for more workers, more training, better academic credentials, advocates serve to maintain the status quo,” Pelton explains, adding that: “Even radical critics have succumbed to the delusion that more of the same, albeit of higher quality, is what we need.” Family preservation programs “represent reforms that are easily digested by the system, while it grinds inexorably on its way.” The current family-preservation rhetoric in effect “serves as a cloak in which state coercion is shielded from the inconvenience of due process.”

In the final analysis, efforts at reform have failed because the core tasks of the child protection system–investigation of families and child removal–remain unchanged. As sociologist John Hagedorn explains: “Investigation of poor families and removal of children into foster care have crystalized as the core tasks of social work, those tasks which define what line workers do on a day-to-day basis.” It is precisely these core tasks that must be altered if any meaningful reform is to be attained.

The ominous parallels

When the police came looking for them, they were hiding in a closet buried in clothing in fear of being found. But find them they did. In April of 1998, “three youths, who committed no crime beyond their failure to testify against their father, were jailed in juvenile hall for 12 days and brought to court in handcuffs and leg chains,” the _Los Angeles Times_ reports. They had been so bound because they were considered a “flight risk,” having already fled from their state-appointed foster home. The allegation being raised to which they so bravely chose not to capitulate was a claim that their own father had sexually molested their sister.

Conservative columnist Thomas Sowell explains that of those child abuse reports accepted for investigation about half are eventually dismissed, “but not before children have been strip-searched, interrogated by a stream of social workers, police officers, and prosecutors, psychologically tested, and sometimes placed in foster care. Such actions usually occur without search warrants, parental consent, court hearings, or official charges–and often solely on the basis of the anonymous telephone call.” These are the lucky ones.

For many of the children unfortunate enough to have been randomly drafted into being more permanently “rescued” by the state, the day-to-day conditions they are forced to endure are often comparable to those endured by The Disappeared of Argentina. Mark Soler, of the National Youth Law Center, describes some of his experiences in litigating against the foster care industry:

“We have seen children in an Arizona juvenile detention center tied hand and foot to their beds, and a Washington State facility in which two children were held for 5 days at a time in a cell with only 25 square feet of floor space.

“We have seen children hogtied in State juvenile training schools in Florida–wrists handcuffed, ankles handcuffed, then placed stomach down on the floor, and wrists and ankles joined together behind their backs. In the training school in Oregon children were put in filthy, roach-infested isolation cells for weeks at a time.

“In the Idaho training school, children were punished by being put in strait jackets, and being hung, upside down, by their ankles.”

“The day-to-day tragedy of the foster care system, children languishing in care for years without ever having a permanent home or a chance for stability, goes on everywhere,” he explained.

Over the course of the last few decades, some few millions of children have disappeared into the black hole of foster care, only to find themselves “emancipated” into a life of poverty, homelessness and prison. A New York study found that between 25 to 50 percent of those living in shelters had spent some time in foster care. A Canadian study found that an astounding 90 percent of those living on the street were former foster children. The National Association of Social Workers found that 80 percent of those in prison in Illinois had spent some time in foster care as children. While I would not argue that the current child welfare system has been deliberately designed to increase homelessness and swell the prison populations, I would argue that if a system were to be designed with these objectives in mind, it could hardly improve on the model currently in place.

All wars have casualties, and the war against child abuse provides no exception. In the state of Georgia alone, 433 of our children have died while in the hands of the state over a period of some several recent years. Even a cursory review of recent press accounts reveals: In Peoria, Illinois, the state’s child welfare agency “rescues” Donte May from a neglectful and possibly abusive mother, only to place him in a foster home where he dies suspiciously from bleeding in the brain; a Pennsylvania foster mother charged with fatally beating a six-year-old girl in her care; New Jersey officials announcing that they are awaiting autopsy results on an infant who suffered rib fractures and a broken leg in foster care; Oklahoma prosecutors filing murder charges against a foster father who allegedly beat to death his five-year-old ward; a Wisconsin man charged with injuring a foster child in his care so severely that doctors had to use bone grafts to repair his damaged skull; a two-year-old Brooklyn boy beaten to death by his foster mother, who viciously battered the child with her fists–then took him to an all-night card game. He had been beaten with such force that his heart split, one of his lungs was punctured, his liver ripped and his ribs cracked.

Conclusion

Douglas Besharov warned over a decade ago that if changes were not made, public confidence in Child Protective Services would surely erode. Neither the Congress nor the child protection industry heeded his warning. Many decades worth of litigation and polite discourse in academic circles have failed to provide meaningful solutions. Recent legislative changes, such as the Adoption and Safe Families Act, which offers federal financial incentives to terminate parental rights absent so much as a showing of parental unfitness, threaten only to make matters worse.

That the child welfare system is in need of top-to-bottom reform is without question. The Midwest American Assembly, a diverse group of conservative and liberal officials stated categorically: “This system must be overhauled.” The Annie E. Casey Foundation found the need for social service reform “urgent.” The John D. Rockefeller-led National Commission on Children ominously concluded: “if the nation had deliberately designed a system that would frustrate the professionals who staff it, anger the public who finance it and abandon the children who depend on it, it could not have done a better job than the present child welfare system.”

Seth Farber explains that under the guise of helping groups in need, the child welfare bureaucracy seeks above all to perpetuate its own existence. “It is a monstrous social parasite whose overriding objective–no matter how well intentioned its individual staff members–is to capture vulnerable individuals, transform them into its clients, foist its ‘services’ upon them, undermine their autonomy, and ultimately incorporate them into its own parasitic body,” he writes. Farber concludes that the child welfare system is “a dictatorial state within the state that gives the appearance of benevolently serving its clients’ needs, even when it is totally destroying their lives.”

By fanning the flames of hysteria with questionable statistics, radical organizations such as the National Committee for Prevention of Child Abuse, a leading proponent of “universal home visitation services” in which social workers, according to the plan, will visit the homes of “all new parents,” have contributed in their own way to the escalating abuse, neglect, and exploitation of our children in state care. They, along with other, even more radical organizations, have contributed to the growth of a clandestine and self-perpetuating bureaucratic empire, which feeds like vultures on the flesh of our children.

The time has arrived to unite and to allow our voices to be heard as one against this dictatorial state with the state. We hope our entry into the new millennium will mark a new era for us, one in which we will heed the call, one and all, to set aside the minor differences of opinion which have otherwise kept us divided against a common threat to the very existence of our families–lest more of our children disappear in the night.

Most of the girls that I deal with have been raped and molested in the foster homes that they were in.

- Independent Child Advocate, Sharon McGinley

Philadelphia’s foster care system is in the headlines – again.

A BRIEF HISTORY

In a previous case, the Court of Appeals for the Third Circuit wrote in a 1994 decision: “It is a matter of common knowledge (and it is not disputed here) that in recent years the system run by DHS and overseen by DPW has repeatedly failed to fulfill its mandates, and unfortunately has often jeopardized the welfare of the children in its care.”

The original complaint, filed by the Children’s Rights Project of the ACLU (now Children’s Rights, Inc.) on April 4, 1990, alleged that systemic deficiencies prevented the department from performing needed services, and that it consistently violated the due process rights of both parents and children:

Specifically, plaintiffs claim that these amendments confer the right not to be deprived of a family relationship; the right not to be harmed while in state custody; the right to placement in the least restrictive, most appropriate placement; the right to medical and psychiatric treatment; the right to care consistent with competent professional judgment; and the right not to be deprived of liberty or property interests without due process of law.

One of the plaintiffs in the suit was “Tara M.” on whose behalf the ACLU charged the city of Philadelphia with neglect. Human Services Commissioner Joan Reeves guaranteed the young girl an adoptive home with specially trained parents.

In August of 1996, Tara M. made the headlines once again, as her new foster parents were sentenced for “one of the most appalling cases of child abuse” Common Pleas Court Judge Carolyn E. Temin said she had ever heard.

Nine-year-old Tara had three skin grafts and wore a protective stocking while in recovery from burns over more than half her body. Police said the foster parents punished the girl by stripping her, forcing her into the bathtub and dousing her with buckets of scalding water.

It came to light during a later legal proceeding that after having been sexually abused in some foster homes, she was moved to one in which her foster parents allegedly “inserted chili peppers, vinegar, and Vicks Vaporub into Tara’s vagina; punctured her back with a knife; beat her in the face with an electric cord; and scalded her with burning water, causing second and third degree burns over sixty percent of her body.”

This was the very best of care that the city of Philadelphia could provide for Tara, a girl who had already endured years of physical and sexual abuse in the several foster homes into which she had been placed over the years.

THAT WAS THEN – THIS IS NOW

“Foster care nightmare subject of lawsuit,” blares the headline of an ABC-affiliated Action News special report issued on February 11, 2011.

“A shocking case of alleged abuse within the Philadelphia foster care system in Philadelphia is the subject of a lawsuit,” the report explains.

“The lawsuit reads like a horror story. A little girl allegedly raped repeatedly in her foster home by a teenage boy who shouldn’t have been there.”

That boy was the foster mother’s son, whose presence in the home had been concealed by the foster mom. The young girl was allegedly raped repeatedly by the boy over a span of 10 months.

The victim is 11-years-old now, and she’d been placed in a foster home in the city’s Mayfair section when she was 8.

The girl, called “Renee” to protect her true identity, was placed in the foster home by Concilio, a private social services agency that operates under a contract with the city’s Department of Human Services.

Neither Concilio nor the Department of Human Services would talk to reporters about the case.

NOT UNUSUAL

“Unfortunately, Renee’s allegation isn’t unusual,” the report explains.

“Most of the girls that I deal with have been raped and molested in the foster homes that they were in,” said Independent Child Advocate, Sharon McGinley.

McGinley – an independent advocate for kids aging out of foster care – says the system is broken, and that the people on the front lines are afraid that change would jeopardize their federal funding.

“If they make a big stink about something, if they speak like I am, they’re afraid they won’t be getting the kids who give them the money to keep the organization going,” said McGinley.

Renee’s lawsuit claims that the Defenders Association failed her in its role as her legal advocate, and that Concilio failed to properly investigate the foster home before placing her there.

In a previous blog entry, I’d referenced foster care as a sexual abuse laboratory experiment. I continue to stand by my observation. To borrow once again from the 2008-2009 Sacramento County Grand Jury report, when it comes to foster care: “Nothing Ever Changes – Ever.”

I have now been a judge for twenty years. During this time much human tragedy has passed before me; however, none has so deeply touched me as the plight of these children.

District Judge Joseph C. Howard
L.J. v. Massinga, 699 F. Supp. 508 (D. Md. 1988).

The history of the case was described by Judge Howard as “long and arduous.” It began over a quarter of a century ago when “a Baltimore school counselor noticed something disturbing in a classroom: a 6-year-old boy was sticking tacks into his hands, calling himself ugly and stupid,” the Baltimore Sun reports.

“As it turned out, the boy was a foster child who had been placed in the home of a violent alcoholic by the Baltimore Department of Social Services. Lifting up his shirt revealed that nearly every inch of his chest, back, arms and stomach was crisscrossed with scars,” the Sun explains.

The child wound up in a psychiatric hospital, and his case inspired what came to be known as L.J. v. Massinga, so named because among the twenty-one named Defendants was Ruth Massinga, Secretary of the Maryland Department of Human Resources.

The case started in 1984 with the filing of a complaint on behalf of foster children in the care of the Baltimore City Department of Social Services and numerous city and state foster care officials and other Department personnel. The complaint alleged that their mismanagement of the Baltimore foster care program resulted in the foster children suffering physical abuse, sexual abuse, medical neglect, and that they were otherwise being subjected to dangerous living conditions while in the custody of the Department.

In an effort to counter the allegations, Baltimore’s Department of Social Services established an investigative body that came to be known as the “Harris Task Force.”

But that effort backfired. The Department’s own internal investigation came up with findings that only served to help the Plaintiff’s case. These included a shortage of foster care homes, insufficient staff, poor training, and a general absence of adequate safeguards and oversight to ensure the children’s safety.

To be more specific, as United States District Judge Joseph C. Howard described it in a ruling that he’d issued in 1987:

The Harris Task Force found the following “major systematic problems” in the BCDSS foster care program (1) the purpose of family care was not well-defined leading, for example, to the placement in foster homes of children whose needs could not be met within a private home setting; (2) payments to foster families were unrealistically low; (3) there were not enough homes, and there was “no concerted effort to recruit foster homes”; (4) licensing of foster homes was inadequate: a lower standard is applied to restricted homes than regular homes, and licensing is based on inadequate information; (5) “serious gaps” in the training provided to foster families, BCDSS case workers and their supervisors; (6) BCDSS files contained inadequate information about medical histories, foster parents and education; (7) the “agency’s organizational structure is conducive to chaos”; (8) some caseworkers and supervisors lacked necessary training; (9) more strict enforcement of policies requiring investigation of abuse and neglect complaints was necessary; (10) the Department of Human Resources (DHR) needed to improve monitoring of BCDSS to ensure the adequacy of services; (11) substantial increases in staff size were necessary to reduce ratios of cases handled by foster care workers; (12) poor morale among BCDSS staff; (13) need for a pre-placement diagnostic facility to place children on an emergency basis and identify their problems; (14) need for an automated system to monitor foster care cases; (15) a lack of coordination between BCDSS and agencies outside the city when children were placed outside the city; (16) a policy classification was required for nonlegally responsible custodians who requested a foster care license or payments; and (17) poor relationships among BCDSS caseworkers, BCDSS Legal Services, and the Juvenile Courts with respect to child placement decisions. The findings of the report are uncontroverted.

Pending before the Court on July 27, 1987, were the Plaintiffs’ motions for a preliminary injunction, sanctions based upon the Defendants’ failure to respond factually to the Plaintiffs’ motion for a preliminary injunction, and a default judgment.

By the time hearings on these motions were held, some 91 separate items of evidence were introduced, and the Court had heard from 12 witnesses. Among the items of evidence were seven looseleaf binders, which included “scores of documents.”

The motions were granted.

As preliminary injunctive relief, the Defendants were ordered to: (1) review the status of each foster home where there had been a report of maltreatment; (2) visit each child in a BCDSS foster home on a monthly basis; (3) visit each child who had been the subject of a report of maltreatment on a weekly basis; (4) assign sufficient staff and resources to ensure appropriate medical care was rendered and medical histories were obtained and provided to those rendering medical care to each child; and (5) provide a written copy of any complaint of maltreatment of a foster child to the juvenile court and the child’s attorney.

The Department appealed the adverse ruling to the Fourth Circuit Court of Appeals.

The Defendants challenged the entry of the preliminary injunction, alleging that they were immune to damage claims. They argued that children in foster care had no statutory rights that were privately enforceable. In addition, they invoked “the principle that immunity in the performance of discretionary duties exists where the law governing official conduct is unsettled” and alleged that the foster children’s Constitutional rights were not “clearly established” in a way sufficient to overcome qualified immunity.

In its ruling, the Fourth Circuit took note of one study that “documented systemic problems in the Baltimore foster care program with grave consequences to children in the program and great likelihood of irreparable harm.” In addition, the Court of Appeals noted that “there was testimony by relatives and expert witnesses regarding the cases of sixteen children who had recently been severely abused or neglected, or both, while in foster care.”

There was also testimony from “several experts on foster care to the effect that there were systemic deficiencies in the foster care program which placed the children at substantial risk of severe harm, including the testimony of two physicians experienced in the medical care provided to children in foster care, who concluded that defendants were failing to take responsible measures to ensure foster children essential and basic medical care, placing them at risk of severe diseases and other illnesses.”

On February 1, 1988, the Fourth Circuit upheld the lower Court’s injunction, as well as its ruling that the twenty-one Defendants in the case did not have immunity.

Baltimore went so far as to appeal the Fourth Circuit’s ruling to the U.S. Supreme Court, however the case was rejected by the high Court in 1989. L.J. v Massinga, 838 F.2d 118 (4th Cir. 1988), cert. denied, 488 U.S. 1018 (1989).

Thereafter, the Plaintiffs and the Defendants entered into negotiation and hammered out a Consent Decree, which would have – or should have – ended the case, providing that the Department of Social Services lived up to its end of the bargain.

When District Court Judge Howard finally penned his ruling in September of 1988 ratifying the Decree, he noted that since the original complaint was filed back in 1984, his court had issued over seventy orders and held a dozen status conferences with the parties. The seventeen page long docket listed over two hundred entries.

That was only fours years into the lawsuit. And, getting that far wasn’t exactly easy. Nor did conditions for the foster children in the care of the Baltimore Department of Social Services improve by any significant measure over the course of those four years. However, all parties having agreed that progress was being made, the Consent Decree was adopted.

Judge Howard closed his ruling out with what he described as a personal note, and word of caution: “I have now been a judge for twenty years. During this time much human tragedy has passed before me; however, none has so deeply touched me as the plight of these children. I believe that vigorous enforcement of this decree is essential, and I will do all within my power to see that its provisions are fully implemented.”

Baltimore was supposed to be in compliance with the Consent Decree by September 1990. But the City’s Department of Social Services did not follow though on many of the court-ordered reforms.

In 1991, the Plaintiffs and the Defendants made some changes to the Consent Decree, which the District Court approved.

A 2002 legislative audit of foster care suggested that the Department had simply ignored much of the Decree. The audit sampled 163 cases, most of them from Baltimore, finding that children frequently were not receiving medical or dental care. Many were not even enrolled in school. And, caseworkers weren’t visiting children as often as the law required, Baltimore Sun columnist Julie Bykowicz explained.

Although State officials promised change year after year, shocking cases of children neglected by the state continued to make the headlines. In December 2002, 15-year-old Ciara Jobes was starved and tortured to death by her guardian, reportedly a mentally ill woman approved by the City’s Department of Social Services, Bykowicz reported.

In 2005, the children’s lawyers became aware that the Department of Social Services was using an office building located on Gay Street in Baltimore as an overnight shelter. Their investigation of this shelter “revealed disturbing conditions, with children sleeping on the floor, unable to shower or change clothes, and subsisting on a diet of fast food. The investigation also revealed that some of the children with health problems were placed at risk by the precarious living conditions at the shelter,” the Fourth Circuit explained in its second ruling in the case.

Lawyers representing the foster children conducted their own investigation, which revealed a number of inaccuracies in Baltimore’s compliance reports to the court. When these inaccuracies came to light, Maryland’s General Assembly asked the Department of Legislative Services to address the reliability of the Department of Social Services’ compliance data. The Department of Legislative Services, in a report issued in December 2005, found that “the reliability of the data underlying the reported measures tested was questionable with several being judged unreliable.”

The audit identified “a number of problems impacting virtually every facet of Child Protective Services.” The auditors identified a lack of reliability with nearly every aspect of the system, including foster care data, caseloads, and staffing levels. Auditors also noted that a staffing report that had been presented to the Maryland General Assembly by the Department of Human Resources provided information that was “based on data of questionable accuracy.”

It was also in 2005 that Maryland’s Office of Legislative Audits conducted a review of the Department of Human Resources’ Social Services Administration, which provides (or rather is supposed to provide) oversight over local departments of social services throughout the States. In their report, auditors explained:

Our audit disclosed that, based on SSA’s case review system used to monitor local departments’ compliance with service requirements established in State regulations, many children in foster care were still not receiving the required services necessary for their emotional, physical, and educational well-being. For example, SSA records reflect that 35 percent of these children were still not attending school. Additionally, SSA had no assurance that federal funds had been recovered for all eligible foster care children. According to SSA’s records, 232 of the 8,869 foster care cases were not receiving Title IV-E benefits as of April 2004.

Our review also disclosed that SSA had not determined whether funds paid to group care providers were used for allowable expenses, whether the most cost effective providers were used, and the extent of any overpayments made to these providers. Finally, SSA issued licenses and license renewals to group home providers without always obtaining the required documentation, such as evidence of criminal background checks.

In December 2005, the foster children’s lawyers informed their opponents that they intended to take action to address the Baltimore Department of Social Services’ lack of compliance with the Consent Decree.

In February 2006, the parties entered into negotiation to resolve their differences. The negotiations on possible modifications to the Consent Decree continued over the year.

In March 2007, Brenda Donald was appointed as the new secretary of the Maryland Department of Human Resources. She began implementing numerous reforms to the foster care system. Donald also became involved in the Consent Decree negotiations, agreeing to a number of measures that would allow the children’s counsel to monitor and assess the foster care system.

Ms. Donald, however, rejected a proposal to establish an independent monitor within the Governor’s office to oversee the foster care system. This disagreement brought negotiations to a standstill, and as a result, the children’s lawyer filed a memorandum with the District Court “detailing numerous allegations of Appellants’ noncompliance with the 1988 decree. These included several examples of mistreatment of children in foster care as well as general allegations of inadequate health care and educational services,” the Fourth Circuit explains.

Over the years, the lawsuit expanded to include other children who’d been mistreated while under the state’s care. Among them was Briana, a teenager with learning disabilities. Briana spent 42 nights sleeping with other state wards in the Gay Street office building, with little access to showers or clean clothes back in 2005. Then there was Stephen, a 14-year-old with untreated emotional problems. Stephen ran away from a group home to West Virgina in 2006, threatening suicide.

In November 2007, Mitchell Y. Mirviss, one of the lawyers representing the foster children, asked the Judge then presiding over the case to hold the state in contempt of court, alleging 96 violations of the Consent Decree – failings that included the failure to train foster parents, and neglecting children’s dental needs. A 419-page memo accompanying the motion included Briana and Stephen’s stories, as well as those of another dozen other children under state supervision, Baltimore Sun reporter Julie Bykowicz explained.

The District Court scheduled a contempt hearing for September 2008. Just five days before the hearing, the Defendants filed a report admitting to numerous instances of noncompliance with the requirements of the Decree, stating: “the analysis provided in this report suggests several areas that need our urgent attention in the immediate future.” However, the report expressed the hope that the next report would “show measurable improvements in these critical areas.”

During the Contempt hearing, the Department approached the attorneys for the foster children, offering to negotiate a “compliance and exit plan” that would “require verifiable data for the showing of compliance and exit.” The hearing was postponed pending the outcome of the negotiations.

Around that time, another report issued by the Office of Legislative Audits in October 2008 revealed that little had changed since its previous reports had been issued. Not only was Maryland’s Social Services Administration lax in providing oversight, but it was literally allowing million of dollars to slip through its bureaucratic fingers:

Our audit disclosed that SSA did not adequately monitor local departments of social services to ensure compliance with foster care service requirements established by State and federal regulations that provided for the emotional, physical, and educational well-being of children under SSA’s supervision. SSA had reported that certain improvements had been made to ensure compliance with foster care service requirements. However, according to its May 2007 self assessment, SSA had not yet achieved six of seven federal child welfare outcomes relating to child safety, permanent living arrangements, and child and family well being. In addition, SSA could not establish that caseload staffing requirements set by Maryland law were being met. Also, SSA did not adequately monitor foster care and adoption services, such as whether all available federal funds were obtained for certain services provided to eligible foster care children, and whether the most cost-effective group home providers were used. Finally, SSA did not obtain supporting documentation for training costs for which SSA receives federal funding. During the audit period, SSA had federal disallowances totaling $3.2 million because of lack of substantiation for similar training costs.

It was reported that it was the 2007 contempt motion that prompted mediation between the parties to the lawsuit that led to the eventual filing of an “exit strategy” in June 2009. That exit strategy took the form of a Modified Consent Decree that was agreed to by both parties, and filed with the Court on June 22, 2009.

A joint press release was issued on June 23, 2009, bearing the logos of the Department of Human Resources, the Public Justice Center, and Venable LLP, announcing that: “Following an eight-month mediation process, both plaintiffs and defendants in the long-standing child welfare L.J. v. Massinga class-action lawsuit jointly filed documents in federal court late yesterday to replace a consent decree with a new compliance and exit plan. Baltimore City Department of Social Services (BCDSS) has operated under an existing consent decree since 1988.

“The filing signifies an enforceable agreement by both sides on how to address and resolve some long standing systemic child welfare issues in Baltimore City. The new decree – subject to approval by the United States District Court for the District of Maryland – will ultimately result in BCDSS providing better, more comprehensive care for the more than 5,000 foster children in Baltimore City.”

The Modified Decree called for the appointment of an “Independent Verification Agent” to verify the Department’s compliance. All costs were to be paid for by the Defendants. The parties agreed that Mark Testa, Director of the Children and Family Research Center at the University of Illinois at Urbana-Champaign, would be contracted for the position.

A memorandum filed with the proposed Modified Decree described his duties: “Dr. Testa will examine Defendants’ compliance data, certify those data that are accurate and reliable, and, where he deems necessary, conduct additional information-gathering activities to measure compliance accurately. Furthermore, the proposed Modified Consent Decree requires the parties to utilize a variety of resolution procedures to facilitate compliance and resolve disputes without resort to the Court.”

A hearing on the filing was scheduled to be held on August 5 before U.S. District Judge J. Frederick Motz, who had inherited the case from his predecessors. To have ended federal oversight, the State had to comply with 40 measurable exit standards over a period of 18 months. These standards were in areas such as family preservation, child healthcare, and education. The plan also called for sweeping renovations of case practice.

The attorneys for the children were jubilant, as it seemed that the end of their lengthy and protracted journey through the labyrinth of the legal system was in sight, and that their hard earned victory was close at hand.

But Baltimore’s child savers had another ace tucked up their sleeve.

In September 2009, the Defendants filed a motion in the District Court not only to vacate the proposed Modified Decree, but the original Consent Decree as well. After hearing arguments, the District Court denied the motion to vacate the 1988 Consent Decree, and entered the 2009 Decree.

The Defendants then filed yet another appeal in the Fourth Circuit. They based their appeal on the contention that a then-recent U.S. Supreme Court decision, Horne v. Flores, 129 S. Ct. 2579 (2009), changed the law in a way that deprived the district court of subject matter jurisdiction to enforce the 1988 decree.

The Fourth Circuit didn’t buy the argument, affirming the decision of the District Court on January 26, 2011.

The Modified consent Decree now having the full force of law, one may well wonder where we’ll go from here, some twenty-seven years after the original case had been filed.

CONCLUSION

Because this is the first time that a published opinion had been rendered since Ruth Massinga’s name had been attached to the lawsuit, Brian Wilbon, having temporarily assumed the position of Secretary of the Maryland Department of Human Resources, found his name having been substituted. Effective January 26, 2011, L.J. v Massinga is now L.J. v Wilbon.

Up until recently, Brian Wilbon’s biography on the Maryland Department of Human Resources’ web site described him as “a result-oriented executive with more than 15 years of experience in the financial, operations and healthcare industries.”

His bio continued on to explain that: “He specializes in project management, staff supervision and training, federal revenue maximization, accounting and finance, procedural compliance review and auditing, budget planning and execution, and Medicare and Medicaid reimbursement.”

According to a 2006 press release issued by the office of the District of Columbia’s Adrian Fenty, announcing his cabinet-level appointments: “Wilbon worked for MAXIMUS Corporation in Reston, Virginia as director of the Revenue Division. In this position, Wilbon provided project and program management, information technology, and consulting services to government agencies. He managed a diverse team of consultants and assisted several clients, including Maryland and New Jersey state governments, in recovering more than $100 million in additional federal Medicare and Medicaid revenue. He also helped to file and settle numerous Medicaid and Medicare appeals.”

In case you missed the news, “Maximus allegedly filed false claims for Medicaid-funded targeted case management services, which assist foster children in obtaining needed medical, social and educational, and other services. Maximus submitted 26,683 claims for Medicaid reimbursement that were not supported by documentation. The Federal Government contends that these services were never rendered.” As part of the resolution of the case, Maximus entered into a 5-year monitoring period with the Office of the Inspector General, as well as a 24-month deferred prosecution agreement with the U.S. Attorney’s Office.

“The $42.65 million settlement with Maximus demonstrates the Justice Department’s strong commitment to vigorously pursuing those companies that defraud the Medicaid program,” said Peter D. Keisler, Assistant Attorney General for the Justice Department’s Civil Division in a prepared press release.

In the final analysis, it always boils down to the money; to the federal revenue maximization schemes, to the bureaucratic imperative for expansion and survival, and to misdirecting funding intended to benefit the poor to enrich agency and government coffers.

As the Fourth Circuit Court of Appeals succinctly explained in its 1988 review of the case: “Defendants’ real harm is the expenditure of money. Admittedly the supply of money is finite, but balanced against that is the emotional, psychological and physical damage to children, much of which will continue throughout their lives.”

A report issued by the Office of Legislative Audits in January 2011 bears this out. For years, the Maryland Department of Human Resources engaged in a revenue maximization scheme involving the provision of preventive services to so-called foster care “candidates” – a practice deemed improper by the Department of Health and Human Services years earlier. The auditors explain:

Our audit disclosed that the United States Department of Health and Human Services (DHHS) disallowed certain DHR grant expenditures totaling $9.6 million; consequently, these expenditures were paid with State general funds. In addition, procedures had not been established to ensure that payments made to legal firms on behalf of indigent individuals were proper. Furthermore, DHR did not adequately monitor its grantees to ensure that the funds were spent and services were performed in accordance with the grant agreements.

Our audit also disclosed that DHR circumvented the procurement process to purchase computers costing $850,000. Finally, various internal control weaknesses and other procedural deficiencies were noted in the areas of cash receipts, information systems security and control, and equipment.

Leaving aside the more mundane issue of the circumvention of procurement procedures, where did DHR go wrong in terms of its dealing with the federal government?

In a 2006 report addressed to the Subcommittee on Human Resources of the Committee on Ways and Means, the General Accounting Office explained that several states had experienced disallowances due to their foster care “candidate” qualifying practices.

Delaware was denied almost $6 million worth of claims for quarters extending from December 1999 through June 2003. Pennsylvania was disallowed claims related to candidates because the state had not appropriately applied a penetration rate to the pool of costs, as required by HHS. State officials commented that it had used the same allocation method since it began claiming costs for candidates over the previous 10 to 15 years. According to Michigan officials, the State had reduced the amount of costs claimed on behalf of candidates because they did not want to risk HHS “denying reimbursement for certain claims based on insufficient documentation of caseworker effort or candidacy status.”

In Virginia, the GAO explains: “more than $28 million was denied for 8 quarters in fiscal year 2003 through fiscal year 2005 for absence of a methodology for allocating costs for candidates, charging for unallowable activities, failure to demonstrate that the children were eligible, and other problems with documentation.”

By this time, Virginia’s foster care candidate revenue maximizing scheme had lost much of its luster. On June 16, 2006, Department of Social Services Commissioner Anthony Conyers Jr. sent a memorandum addressed to all local social services directors to provide an update on Title IV-E negotiations between the Commonwealth and the federal government. In his memo, Conyers explained:

The value of these disallowances is in excess of $50M and result from improper claims for reimbursement of Title IV-E funds. Additionally, we were concerned about tens of millions of dollars of potential additional disallowances with continued federal review of past claiming practices. The lion’s share of the disallowances received relate to a Foster Care Pre-placement Prevention Program (PPP). Actions by the ACF Region III, reviews by Covington and Burling, and review by program staff within VDSS revealed PPP activities did not meet requirements to identity children in question as “reasonable candidates” for foster care. ACF Region III and HHS Office of Inspector General (OIG) staff members reviewed 700 cases in visits to three localities and determined that three met federal criteria to be considered “reasonable candidates” for foster care.

We turn now to Fairfax County, Virginia, the subject of a federal audit released in November of 2007. As the Inspector General of the Department of Health and Human Services explains:

As part of its revenue maximization efforts, in April 2002, Fairfax County began claiming administrative costs for candidacy determinations made by entities known as “partners.” The Fairfax County partners included the Fairfax County Juvenile and Domestic Relations District Court; Fairfax County Public Schools; the Fairfax-Falls Church Community Services Board; and five units within DFS, not including the Division of Children and Youth. The county and its partners defined their relationship through a memorandum of agreement, which provided the methodology for reporting to the county costs associated with “pre-placement preventative services.”

When all was said and done, the federal government disallowed $5,577,929 in “administrative expenses” that Fairfax County had claimed for its foster care “candidates” under this revenue maximization scheme. Similar results were obtained in Arlington County, the Inspector General explains in another audit.

Maryland’s Department of Human Resources should fairly have been put on notice by these disallowances. It either knew – or reasonably should have known – that not only were these actions unconscionable, but also illegal. The disallowances for foster care “candidate” revenue maximization schemes in other localities notwithstanding, DHR officials claimed to have found themselves surprised when they were caught with their hands in the federal cookie jar.

“The good news is that we will be able to, going forward, be able to claim these dollars,” said J. Gregory Holland, DHR’s director of cost allocation and revenue management, according to an article in the Baltimore Sun. “All of these things happening, this created the opportunity to do things the right way.”

Mr. Holland; I have some news for you: Advocates have been waiting for over a quarter of a century for your Department to start doing things the right way.

SIDEBAR

What ever happened to Ruth Massigna? Not to worry – there is always somewhere or another for the enterprising child welfare bureaucrat to find another job. If not as a field consultant with the Child Welfare League of America, then perhaps as a revenue maximization specialist in one of the private consulting firms, or as a high-ranking child welfare administrator in another State. Child welfare remains one of the few remaining growth industries, and this phenomenon has been described as the “revolving door” in the field of human services.

Ruth Massinga outdid herself when she was picked up by Casey Family Programs, which not only praises her for her accomplishments as a child saver, but also offers an award bearing her name. Her biography, according to Casey Family Programs:

From 1983 to 1989, Ms. Massinga was secretary of the Maryland Department of Human Resources. She entered state government in 1979 as executive director of Maryland’s Social Services Administration. Two years prior to that appointment, she served as deputy director of the Child Development Associate Consortium in Washington, D.C. From 1972 to 1977, she was director of Berkeley Children’s Services, a child care resource development and referral organization. She holds a Master’s degree in social services from Boston University.

According to the organization’s description of the award: “Casey Family Programs’ Board of Trustees has established the Ruth Massinga Awards in commemoration of Ruth Massinga’s relentless advocacy on behalf of constituents of the child welfare system, particularly youth in care and alumni.”

An audit of the Utah child welfare and foster care systems was released on January 18, 2011, by the Utah Auditor General. While it is hardly what I might consider as a “scathing” audit, it is refreshing in its candor.

The report explains that: “Over the past decade, the number of children DCFS serves in foster care has increased by 38 percent, while the number of families receiving in-home services that allow children to remain home has decreased by 40 percent.” The auditors continue on to note:

DCFS’ focus on providing foster care services rather than in-home services is problematic for the following reasons:

• Research shows that children are best served and permanency outcomes are enhanced when children can safely remain at home with their families.
• Foster care is much more expensive than in-home services and the average duration of foster care cases is nearly four times longer than in-home cases.

The Department’s priorities are clearly reflected in its expenditures. Of the $157,235,087 expended in 2010, $94,482,806 was spent on out-of-home foster care, providing for 60% of the total. In constrast, only $3,442,862 went to child abuse prevention – representing only 2% of the total expenditures.

By way of providing some definitions, out-of-home foster care includes “housing, maintenance, and health care services for children who are removed from their homes and in DCFS custody. Includes payments for all levels of care from basic foster homes to residential facilities and institutions.”

Child Abuse Prevention is defined as including “preventative services through contracted providers and community-based organizations that help families resolve conflicts and behavioral or emotional concerns.”

Enter stage right, the perverse federal incentives favoring placement over prevention. As the Audit explains: “More than half of DCFS’ budget comes from state General Funds. DCFS also receives federal funds. However, the majority of federal funding is currently reserved for out-of-home services (foster care) and cannot be used for prevention or reunification services or supports. States can access dollars under Federal Title IV-E, the principal source of federal child welfare funding, only after children have been removed from their home and enter foster care.”

True to the bureaucratic imperative for expansion and survival, “most of the division’s funding pays for service provider contracts, staff compensation, and other division current expenses.”

The Audit’s findings are worth citing at some length:

The number of children in foster care and the amount of time they remain in foster care have both increased, and the cost of the foster care program continues to increase. However, less expensive in-home services to prevent at-risk children from being removed from home are decreasing. This trend is concerning because research indicates better outcomes result for children served in their own home. Providing inhome services to minimize future foster care placements will result in immediate savings that should more than pay for additional in-home services.

In-home services are required by statute to prevent or reduce the removal of children from their homes. Other states have effectively implemented in-home models and, as a result, children were removed from their homes less often. We recommend the Division of Child and Family Services (DCFS) choose evidence-based service options that will prevent additional children from being removed from home and bring removed children back home as quickly as possible.

The Audit notes that the number of children in foster care has increased from 2020 to 2790 in the past decade, while the number of families provided services to prevent at-risk children from being removed from home has decreased from 2707 to 1640. The Audit alsso noted wide regional disparities, in this regard.

The report explains that Utah state code requires the division to “make reasonable efforts to prevent or eliminate the need for removal of a child from the child’s home prior to placement in substitute care.” The State Code also says that:

It is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents. A child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships will usually best be met by the child’s natural parents.

The Audit revealed ome other troubling trends, not the least of which is that in Utah, the number of children and youth in residential care had increased 50 percent over the last decade. And, citing the Pew Charitable Trusts, the Audit explains that “of all 50 states, Utah had the 12th highest percentage of youth aging out of foster care without a family in 2006.”

Vague definitions of “abuse” and “neglect” are at least in part to blame. The auditor note that: “we think DCFS should review their child protective services (CPS) procedures and definitions of abuse and neglect. Some DCFS staff told us that the division has a broader definition of what constitutes abuse and neglect than other states. As a result, DCFS may investigate more cases and have more supported findings of abuse and neglect because it applies a different policy than intended by the Legislature. Since these lower risk cases do not receive services anyway, the concern is that families and children are unnecessarily stigmatized and division resources are diverted from more serious cases.”

The auditors expresed that DCFS should review administrative rule definitions to ensure consistency with state statutes, explaining that: “DCFS appears to apply a broader definition of what constitutes abuse and neglect than other states. As a result, Utah may investigate more cases and have a higher number of supported findings than the national average. Some DCFS staff told us they believe too much emphasis is placed on low risk cases at the expense of more serious cases of maltreatment.”

The Audit also noted that DCFS’ average caseload calculation is based on questionable assumptions. By excluding workers with low caseloads, DCFS can submit claims for additional funding to the State Legislature based on artificially inflated caseloads.

When it comes to foster care, the more things seem to change – the more they stay the same.

Related reading:

A Performance Audit of the Division of Child and Family Services, Report #2011-02, Utah Auditor General, January 18, 2011.

Marjorie Cortez, “Increased number of foster care placements ‘troubling,’ child welfare expert says, Deseret News, (January 28, 2011).

Camreta v. Greene
588 F.3d 1011 (9th Cir. 2010)

The United States Supreme Court has agreed to hear a case which will determine whether Child Protective Services, accompanied by police, can take children out of their classes at school and interview them without parental consent or court order. This case will have a major impact on families’ rights. The prestigious law firm Lanser, Kubitschek and Schaffer has been retained to represent S.G. and her mother Sarah Greene in the U.S. Supreme Court. Carolyn Kubitschek will argue the case in the Spring, 2011.

S.G was removed from her classroom and interrogated for two hours in the presence of a police officer. S.G. told the investigators that her father did not abuse her and always treated her well. However, as the hours passed, S.G. concluded that Camreta and Alford would not let her go until she answered yes – untruthfully – to their questions about sex abuse.

When she finally did so, Camreta and Alford allowed her to leave and return home to her purported molester. Since then, S.G. has always stated that she was never abused, and that she felt forced to agree with Camreta’s untrue suggestions. A subsequent evaluation by the KIDS center, the child advocacy center in Bend, confirmed that neither S.G., nor k.G. had been abused.

S.G. was very upset by the interrogation and vomited when she returned home. She was also embarrassed in front of her schoolmates. She is still traumatized by the event. S.G. and K.G. were later removed from their mother, Sarah Greene, for three weeks. S.G. and her mother sued, claiming, among other things, that S.G.’s two-hour detention and interrogation was unconstitutional under the Fourth Amendment because there was no court order or warrant, no consent, and no exigent circumstances. The Ninth Circuit agreed that it was unconstitutional, although the court granted qualified immunity to Camreta and Alford. Greene v. Camreta, 588 F.3d 1011 (9th Cir. 2010). The sheriff and caseworker have taken the case to the United States Supreme Court, which granted certiorari.

Lanser, Kubitschek and Schaffer are seeking amici to support S.G. and other children from being subjected to the same or similar experiences. If you are able to assist in writing a brief, or want to sign on to one, please contact Lanser, Kubitschek and Schaffer or Diane Redleaf at the Family Defense Center in Chicago.

I encourage all family advocates to support this effort to secure the Fourth Amendment rights of our children in their schools.

I have assembled a Special Collection in the Lifting the Veil Scribd Database holding the 9th Circuits Opinion, the Petitions for Writ of Certiorari to both the U.S. Court of Appeals for the 9th Circuit and the U.S. Supreme Court, as well as the Merits and Amicus Briefs that have so far been filed. Also included is some relevant correspondence from the law firm of Best, Best and Krieger discussing the impact of the case on current policy.

The Dinwiddie family’s foster care nightmare began when their 16-year-old son decided to surreptitiously slip out of the house to have a night on the town.

Imagine how delighted Fred and his wife Michelle must have been the following morning when agents of the Giles County Department of Social Services arrived at 5 A.M. with officers of the Giles County Sheriffs Department in tow. Imagine also their delight at being arrested for felony abandonment, even as their other children were removed from their home.

Their son, you see, had told the police that he’d been kicked out of his home. He later recanted, and the Dinwiddie family was found not guilty on the abandonment charge. Nevertheless, DSS saw fit to hold their children in foster care for eight months.

Fred and Michelle later received copies of interviews detailing how DSS had questioned first their two older boys together, and then the two younger ones together.

“The difference in the two interviews was like night and day. The younger children told the truth and said what we have been saying all along even when they were obviously trying to trick the children with ambiguous questions,” Fred explains.

With respect to the two older brothers, interviewers had managed, by some means, to produce a 65-page transcript, notwithstanding that the interview reportedly only took 4 minutes to complete.

To be sure, no case against a family would be complete without allegations of sexual abuse. Naturally, these accusations arose out of sessions with a therapist that one of the daughters was compelled to attend. This led to several charges being filed, all of which were ultimately dropped in the complete absence of corroborating evidence.

Vindication may have at long last arrived for the family in the form of a recent court filing, Dinwiddie et al v. Giles County, Virginia Department of Social Services et al. Case no: 7:2011cv00008, filed January 7, 2011, the venue being the Virginia Western District Court, Roanoke Office, the Honorable Samuel G. Wilson presiding.

Naturally, the case arises as a Section 1983 action, which alleges a conspiracy to deprive the Dinwiddie family of their civil rights. The Defendants include:

Amy Bishop, Phil Blankenbeckler, Linda Boggs, Braley and Thompson, Mike Dobbins, Sergeant Scott Dunn, Captain Michael Falls, Katherine Flaughrety, Doug Fleming, Laureen Fleming, Giles County Sheriff’S Office, Giles County, Virginia Department of Social Services, Anita Goodwin, Detective Ron Hamlin, Glenn Harris, Jennifer Harris, Sandi Hodges, Hope Tree Family Services, Rebecca Hughes, Darrell Hunley, Oma McReynolds, NRV Community Services, Sherri Nipper, Virginia Quaid, Jeff Ryan, Rhonda Ryan, Hattie Savage, Greg Schlake, Officer Mark Skidmore and Jean Williams.

Fred explains that he and his wife had been happily married for 20 years when their ordeal began. The family had lived a trouble-free existence – indeed, Fred hadn’t had so much as a parking ticket in 15 years. This bears relevance because it illustrates the point that bad things can – and often do – happen to good people.

“Throughout it all our children were well fed, clean, attended school and some even made honor roll on a regular basis along with other certificates of achievement. Everything and every decision we have made as parents, good or bad, have been for the ultimate well-being and proper care of our children. The social service workers in this state and nationwide are operating with immunity and stealing good parents’ children and doing more harm to children than good,” Michelle explains.

It would be two months before the couple would get their first visit with their children, and another two months for their second.

Naturally, DSS split the children up in various homes, and, up to two-half hours away from their home.

And, at one point during the lengthy and protracted legal proceedings, Fred and Michelle were ordered to pay $360 a month in child support to offset the costs of their oldest daughter’s care.

“They shopped for therapists and doctors (who weren’t even licensed in Virginia) to diagnose our children with disorders and to tell a judge their biased opinion that the children were better in foster care and doing well. What they did not tell the judge was that VDSS workers and workers from Braley and Thompson and Commonwealth Catholic Charities were bribing our children and when that didn’t work they resorted to threats and intimidation as well as physical, emotional, and sexual abuse by foster parents and workers,” Fred explains in one of his web postings.

Some of the highlights of the Dinwiddie childrens rescue into state care include:

• The 14-year-old was fed rice and turkey daily, left in the car everywhere the foster family went, and was threatened and abused by an 18 year old foster child.
• The 10-year-old child was squeezed so hard by the foster father that he had a mark on his stomach for months. He was also isolated in the middle of his room for hours on end, while allowed no contact with his sister – who shared the same foster home.
• The 12-year-old daughter had her hair pulled out by her foster father as he was trying to hit her brother while driving. He reportedly almost ran off the road as he did so.
• The 17-year-old child was made to work for 7 different foster families without pay. He was also strip searched, repeatedly harassed, and called a “Nazi” by his foster mom and other children. He also went for eight months with an infected toe without medical treatment, and, he was beaten in school after being placed in a group home. He wound up in four different schools over the period of his eight months in care.
• The older daughter attempted suicide 2-3 times, and had to have her stomach pumped, after which she was committed for a week to Lynchburg Hospital, where her dosage of Lexapro – a drug that is known to induce suicidal thoughts and behaviors – was quadrupled.

Through it all, the children were all doing well and fine in their foster care placements, according to the GAL, CASA, the therapists, foster parents, and the foster care workers at Giles County DSS. According to Fred Dinwiddie, this is how they all testified in court – presumably while under oath.

Thanks to the efforts of a dedicated attorney, the Dinwiddie family was reunited after an eight-month-long ordeal.

Fred notes that a social worker stated that at any given moment in Giles County, Virginia, there are 300 ongoing cases. He notes that the County has a population of less than 9000, and that it strikes him that this is a large percentage of families who are being impacted by the County’s DSS.

Postscript: The Dinwiddie family has since relocated to another state. The oldest son is now 19 years old, and is serving as a Private in Afghanistan. He left to fulfill his military duties on Tuesday, January 11, 2011.

“He tried really hard to turn his life around and now values his family,” Michelle explained.

Related reading:

Prisoners-of-War, Fred and Michelle Dinwiddie’s account of events on Kidjacked.com.

Dinwiddie et al v. Giles County, Virginia Department of Social Services et al, Justia.

Virginia is Blocking Abuse and Neglect Investigations in State Care, Lifting the Veil Blog, Dec 2, 2010.

Foster Care Candidate Revenue Maximization Schemes Line County Coffers, Lifting the Veil Blog, Oct 22, 2010.

Child Support, Foster Care, and the Poverty Profiteers, Lifting the Veil Blog, Oct 13, 2010.

Child Support Harming Children: Subordinating the Best Interests of Children to the Fiscal Interests of the State, Daniel L. Hatcher, Wake Forest Law Review, Vol. 42, No. 4, 2007.

Collateral Children: Consequence and Illegality at the Intersection of Foster Care and Child Support, Daniel L. Hatcher, Brooklyn Law Review, Vol. 74, No. 4, 2009.

Imagine a state establishing an agency as a watchdog, and of that same state trying to cut its legs off when it actually manages to sniff something out.

State legislated watchdogs, you see, aren’t really supposed to find things. Rather, it seems, they are supposed to provide the mere pretense of providing oversight.

Few would question that legislators are prone to making mistakes. Among them is the mistake of occasionally appointing the right person to a particular position. That is to say, someone who’ll actually do the job correctly.

That’s a arguably a rare mistake, but it does actually happen, from time to time.

That rare mistake occurred when Colleen Miller was appointed to head the Virginia Office for Protection and Advocacy. Clearly, she is a woman of integrity – which is a rare quality for a government bureaucrat to hold in such a position.

The Virginia Office for Protection and Advocacy was created as an independent state agency by the General Assembly in 2002. The General Assembly charged it with investigating abuse and neglect of persons with disabilities. Under both state and federal law, the Virginia Office for Protection and Advocacy (VOPA) “is authorized to pursue all necessary legal remedies to carry out its mission.”

Today, Virginia’s Department of Behavioral Health is clashing head-to-head with VOPA, trying to undermine its authority as a watchdog – even as it endeavors to whitewash apparent wrongdoing leading to deaths in the state-operated facilities that it ostensibly oversees.

As Colleen Miller, VOCA’s director, explains in yesterday’s blog entry:

In 2006, two people died under suspicious circumstances in Virginia institutions and a third person was seriously maimed. One death, at Central State Hospital in Petersburg, appeared to be the result of excessive force and improper restraint. The other two incidents, one a death and the other an assault, occurred at Central Virginia Training Center in Lynchburg. Both appeared to be the result of staff neglect. VOPA was alerted to the suspicious deaths and the serious injury from various sources and began investigating. In the course of its investigations, VOPA requested specific records from the Department of Mental Health, Mental Retardation and Substance Abuse Services, now known as the Department of Behavioral Health and Developmental Services. The Department, which operates the facilities where the incidents occurred, refused to provide the requested records. VOPA sued in federal court, alleging that the state’s refusal violates federal law. The 4th Circuit Court of Appeals barred the suit. The Court of Appeals held that VOPA, as a state agency, cannot sue another state agency in federal court, even to enforce federal law. The U.S. Supreme Court agreed to review the ruling of the 4th Circuit.

This quandary leads us into the very chambers of the United States Supreme Court, where oral arguments were raised only yesterday concerning the issue of whether one state agency may sue another in federal court to enforce its role as a watchdog.

This arose from an appeal in the Fourth Circuit ruling against VOCA. As, Oyez, a web site that tracks such rulings explains:

The Virginia Office of Protection and Advocacy (“VOPA”), a state agency dedicated to advocating on behalf of persons with disabilities, sued several Virginia state officials in their official capacities in a Virginia federal district court. VOPA alleged that the officials violated two federal statutes when the officials refused VOPA access to state records which VOPA argued it was entitled. The officials moved to dismissed the case arguing that they were immune to suit under the Eleventh Amendment.

The U.S. Court of Appeals for the Fourth Circuit reversed the district court, holding that the state officials were immune to suit under the Eleventh Amendment. The court reasoned that: (1) Congress did not abrogate state immunity under the statutes which VOPA sued under and (2) the mere receipt of federal funds by Virginia under the two statutes did not mean that the state had consented to suit.

In a supplemental legal brief submitted to the Supreme Court on May 27, VOCA explained that only two Circuits – the Seventh and the Fourth – “have addressed the ability of a protection and advocacy entity that is organized as a state agency to sue state officials of the same State in federal court.”

As these rulings were directly in conflict, VOCA explained that the Supreme Court “should allow the issue to develop further in the lower courts to determine whether this is actually a recurring issue.”

Some critical thinkers actually took notice of all of this, among them Rhode Island’s Office of the Child Advocate, which submitted a legal brief in support of VOCA to the Supreme Court, explaining that: “The Child Advocate is empowered by the State of Rhode Island to safeguard vulnerable children in Rhode Island, and it has done so in part by bringing federal claims against state officials in federal court. If affirmed, the Fourth Circuit’s decision would remove powers that agencies like the Child Advocate and VOPA have properly been given by their states.”

The organization Disability Rights Oregon also took notice of this, explaining that: “On December 1, 2010, the United States Supreme Court will hear argument in a case where the Commonwealth of Virginia asserts immunity from investigations. In the case, Virginia Office for Protection and Advocacy v. Stewart, the Virginia Office for Protection and Advocacy (VOPA) is investigating deaths and other suspicious incidents at state operated facilities, but the State refuses to cooperate in the investigations. The State asserts that it cannot be required to produce any information in the investigations.”

As Disability Rights Oregon explains the case:

In 2006, two people died under suspicious circumstances in Virginia institutions and a third person was seriously maimed. One death, at Central State Hospital in Petersburg, appeared to be the result of excessive force and improper restraint. The other two incidents, one a death and the other an assault, occurred at Central Virginia Training Center in Lynchburg. Both appeared to be the result of staff neglect.

VOPA was alerted to the suspicious deaths and the serious injury from various sources and began investigating. In the course of its investigations, VOPA requested specific records from the Department of Mental Health, Mental Retardation and Substance Abuse Services, now known as the Department of Behavioral Health and Developmental Services. The Department, which operates the facilities where the incidents occurred, refused to provide the requested records. VOPA sued in federal court, alleging that the state’s refusal violates federal law. The 4th Circuit Court of Appeals barred the suit. The Court of Appeals held that VOPA, as a state agency, cannot sue another state agency in federal court, even to enforce federal law.

Some other formidable alliances formed as well around this case. The AARP, the National Senior Citizens Law Center, the Arc of the United States, the National Health Law Program, and United Cerebral Palsy drew together to draft a legal brief in support of VOCA’s argument that it could seek redress through the federal courts.

So, what does all of this boil down to? The questions of whether a state agency accepting federal funding may be held accountable for its transgressions when it fails to fulfill its federal mandates. When people die under its watch, clearly it is so failing.

More significantly, it boils down to a question of whether a state agency that is in receipt of federal funds in clear breach of its federal mandate may be held accountable for that breach in a court of federal jurisdiction.

Without question, this is an important case that is well worth watching.

The Declaration on the Rights of Indigenous Peoples was adopted by the General Assembly of the United Nations on September 13, 2007, by a majority of 144 states in favor, and 4 votes against.

Perhaps it should not be surprising that the four nations voting against the Declaration were the four with the most atrocious records in terms of their relations with their own Indigenous Peoples: Australia, Canada, New Zealand and the United States.

Andrew Armitage explains in “Comparing the Policy of Aboriginal Assimilation: Australia, Canada and New Zealand,” that by the 1970s “child welfare agencies had succeeded residential schools as the preferred care system for First Nations children.”

Armitage explains that: “Children were removed from their parents without regard to differences of history, culture, or ethnicity because the assumption was that these factors were much less important than were physical health, diet, housing, absence of alcoholism in the home, and so on.” He further explains: “It was thought that the heritage and culture of the adopting parents or foster parents could be acquired by the child.”

The removal of Native American children by social workers in the United States came to be recognized as “cultural genocide,” and led to the passage of the Indian Child Welfare Act.

The House Report accompanying the Indian Child Welfare Act clearly indicates that many of these removals of Native American children from their families were economically driven:

In some instances, financial considerations contribute to the crisis. For example, agencies established to place children have an incentive to find children to place.

Indian community leaders charge that federally-subsidized foster care programs encourage some non-Indian families to start “baby farms” in order to supplement their meager farm income with foster care payments and to obtain extra hands for farmwork. The disparity between the ratio of Indian children in foster care versus the number of Indian children that are adopted seems to bear this out. For example, in Wyoming in 1969, Indians accounted for 70 percent of foster care placements but only 8 percent of adoptive placements. Foster care payments usually cease when a child is adopted.

These assimilationist policies were examined in detail in a recent article posted on my web site. Suffice it to say here by way of a brief summary that scores of Indigenous children were literally scooped up simultaneously in all four of the dissenting nations – first into residential schools, then into foster and adoptive homes.

To be sure, there were many other egregious indignities endured by Indigenous peoples in each of these nations, however the most agonizing, by far, was the literal scooping up of their children.

Since the adoption of the Declaration on the Rights of Indigenous Peoples, Australia and New Zealand have reversed their positions and now endorse the Declaration, the United Nations explains. The UN notes also that: “In March 2010, the Government of Canada announced it would take steps to endorse the UN Declaration and, in April 2010, the United States indicated that it will also review its position regarding the Declaration.”

A press release issued by the Government of Canada, issued on November 12, explains: “The Government of Canada today formally endorsed the United Nations Declaration on the Rights of Indigenous Peoples in a manner fully consistent with Canada’s Constitution and laws.”

“We understand and respect the importance of this United Nations Declaration to Indigenous peoples in Canada and worldwide,” said the Honourable John Duncan, Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-status Indians. “Canada has endorsed the Declaration to further reconcile and strengthen our relationship with Aboriginal peoples in Canada.”

“Canada is committed to promoting and protecting the rights of Indigenous peoples,” said the Honourable Lawrence Cannon, Minister of Foreign Affairs. “Canada’s active involvement abroad, coupled with its productive partnership with Aboriginal Canadians, is having a real impact in advancing indigenous rights at home and abroad,” the press release explained.

Writing in Indian Country Today, Valerie Taliman explains: “When Canada endorsed the United Nations Declaration on the Rights of Indigenous Peoples recently, it created a groundswell of hope in Indian country, and put more pressure on the United States to step up soon.”

Chief Wilton Littlechild, a respected Cree lawyer from Alberta who forged early negotiations on the Declaration, said he was highly encouraged that soon all nations will implement it.

“It’s been a long run since 1975 when our elders, after sacred ceremonies and deliberations, decided to go to the international arena. Concerned about treaty violations, we sought justice by participating throughout the drafting stages and negotiations of the U.N. Declaration. I was very disappointed and felt betrayed after Canada voted twice against adoption of the Declaration.

“I’m happy that we can now move ahead together, reflecting our treaty partnerships, to implement the U.N. Declaration,” he said. “For the United States, it offers a tremendous opportunity to be bold and better. Other nations have tried to qualify their support and endorsement, but the United States should take the lead as a member of the Human Rights Council and indicate that the Declaration is more than an aspirational document.”

Alan Parker, an attorney, professor and former counsel to the U.S. Senate Select Committee on Indian Affairs recommended that the Obama administration consult with Canada, New Zealand and Australia to coordinate the process of policy adjustment and modification.

Taliman closes out her article with a plea to the President: “It’s time to change the long history of discrimination and oppression in the United States, and to acknowledge that indigenous peoples worldwide deserve the same rights as other citizens of the world.

“President Obama, be the change you want to see. We urge you to quickly adopt the U.N. Declaration on the Rights of Indigenous Peoples.”

I agree, Mr. President. That, and actively seek vigorous enforcement of the Indian Child Welfare Act – which the states have largely ignored since it was enacted in the late 1970s.

If you can accomplish those two things, Mr. President, you may forever be memorialized by Native Americans as the greatest President of all time.

Related reading:

Government of Canada, Canada Endorses the United Nations Declaration on the Rights of Indigenous Peoples, Marketwire, (November 12, 2010).

Valerie Taliman, United States cannot be the only country opposing indigenous rights, Indian Country Today, (November 26, 2010).

Forcible foster care ‘genocide’: UN Declaration, The First Perspective, (November 24, 2010).

Official United Nations Web Site describing the Declaration on the Rights of Indigenous Peoples.

Wikipedia entry on the Declaration on the Rights of Indigenous Peoples.

For a discussion of the ICWA in a broader global context, see my article Little Angel Bird: Reflections on a Young Girl’s Death in Alberta

See also generally Under Siege: The Indian Child Welfare Act

See generally also my recent blog entry The Indian Child Welfare Act: Where Are We Today?

See also Lifting the Veil’s ICWA article collection which holds 60 links to scholarly articles, field studies, Congressional testimony and other related resources.