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Native American Groups Call on Justice Department for Investigation

2014 February 4
Posted by ethoma

On Monday, February 3rd, four prominent Native American groups called on the Justice Department to initiate an investigation into the child welfare and adoption systems, saying violations of civil rights run rampant, according to a prepared press release.

National Indian Child Welfare Association Executive Director Terry Cross presented a letter during a meeting at the U.S. Attorney’s Office in Portland hosted by Department of Justice Acting Attorney General for Civil Rights Jocelyn Samuels.

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In the letter addressed to Acting Assistant Attorney General Samuels and Deputy Assistant Attorney General Hill of the U.S. Department of Justice, the four groups requested that the Civil Rights Division promptly investigate widespread non-compliance with the Indian Child Welfare Act, and unlawful practices concerning Native American and Alaskan Native children by public and private child welfare and adoption systems.1

The letter follows the recent high-profile custody battle over a Cherokee girl known as “Baby Veronica,” which pitted the interest of the child’s natural father against those of an adoptive white couple. The U.S. Supreme Court overruled custody rulings in the father’s favor, freeing the girl for adoption by a white South Carolina couple. The announcement also comes amidst a lawsuit alleging violations of federal law governing foster care and adoptions.

The organizations, which include the National Indian Child Welfare Association, the National Congress of American Indians, the Native American Rights Fund and the Association on American Indian Affairs, noted in their letter that:

despite all the protections provided by ICWA, each year thousands of parents, grandparents, aunties, uncles, and child advocates reach out to the National Indian Child Welfare Association (NICWA) desperate for help. Their rights under ICWA and the Constitution continue to be violated by state child welfare and private adoption systems. NICWA frequently hears stories of adoption agencies ignoring the tribal membership of children, of state attorneys failing to provide notice to a tribe when a child is taken into custody, of child welfare workers sometimes knowingly placing children outside ICWA’s placement preferences, and of judges denying tribal representatives a presence in the court room. NICWA also often hears stories of Guardians ad Litem scoffing at the importance of Native culture, state workers demeaning AI/AN parents and traditional ways of parenting, and attorneys using professional networks to encourage other attorneys to purposefully circumvent the “ridiculous” or “unnecessary” adoption requirements of ICWA.

Stories similar to these have just recently garnered media attention and brought a spotlight onto the injustices that AI/AN families have faced for decades in private adoptions and in state child welfare proceedings. Recent news stories have covered a variety of topics from the placement of AI/AN foster children in white homes when relatives are ready and able to care for the children and Native licensed foster care homes stand empty, to the secreting away of children across state lines without the proper authority for the purpose of avoiding ICWA in adoption proceedings, to the thwarting of fit biological fathers willing and able to parent their children in child welfare and private adoption proceedings.

The letter continues on to say: “These stories highlight patterns of behavior that are at best unethical and at worst unlawful. Nonetheless, although these civil rights violations are well-known and commonplace, they continue to go unchecked and unexamined. So long as this is the case, Native children and families will continue to be victims of the very systems designed to protect them.”

The letter adds that non-compliance with the ICWA harms children, and that: “Attorneys, social workers, and judges cannot, and should not, ignore federal law and the civil rights of AI/AN children, parents, and families. When ICWA is not followed, the cultural bias and prejudice present in the child welfare system goes unchecked.”

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On January 28, the U.S. District Court for the District of South Dakota in Rapid City ruled that Oglala Sioux Tribe v. Van Hunnik would proceed to trial, and certified the case as a class action suit. In his ruling certifying the case, judge Jeffrey L. Viken wrote: “The named plaintiffs, on behalf of the proposed class, seek a declaration that defendants’ policies, practices or customs amount to or result in deprivations of their constitutional and statutory rights. Whether these policies, practices and customs violate plaintiffs’ procedural rights under the Fourteenth Amendment and ICWA is a common legal question across the proposed class.”

“The American Civil Liberties Union filed the lawsuit in March 2013 along with the ACLU of South Dakota and Dana Hanna of the Hanna Law Office in Rapid City. The lawsuit claims that Indian children are being removed from their homes in hearings that last no more than a few minutes, in which parents fail to receive a copy of the petition against them or have a chance to present evidence,” an ACLU press release explains.2

“This is an important step forward for the rights of Indian families and tribes,” said Stephen Pevar, senior staff counsel with the ACLU’s Racial Justice Program. “We are grateful to Chief Judge Viken for taking the time to examine the complex issues raised in this case and for his sensitivity to the goals of the Indian Child Welfare Act.”

Of related interest, The Inquiry into the Circumstances Surrounding the Death of Phoenix Sinclair, based in Manitoba, released its report to the public on January 31, 2014. That report found, among many other things, that: “In Canada, Aboriginal families are involved with the child welfare system, and their children are in care of child welfare agencies, in disproportionate numbers. Studies suggest that high rates of Aboriginal children in care, suicides, domestic violence, and overall loss of culture are not individual problems: they affect entire communities and require community healing to prevent further intergenerational damage.”

 


1. With the wave of privatization and outsourcing of state and municipal child welfare services it is difficult to say with precision where one begins and the other ends. See for example Amy C. Vargo, M.A., Mary Armstrong, Ph.D., Neil Jordan, Ph.D., Mary Ann Kershaw, B.S.,Jennifer Pedraza, B.A., and Svetlana Yampolskaya, Ph.D., Report to the Legislature: Evaluation of the Department of Children and Families Community-Based Care Initiative Fiscal Year 2004-2005, University of South Florida, (2006) (“Even before the publicly-funded safety net was developed, sectarian and non-sectarian agencies created and funded various services analogous to today’s child protection, congregate care, and foster care services. Since the emergence of publicly-funded child welfare in the 1880s, state and local governments have paid private, voluntary agencies to provide services. This is sometimes referred to as privatization”). See also my article of Sept 4, 2013, ICWA: Still Under Siege by Adoption Industry for a closer look at Bethany Christian Services, the private sectarian adoption agency that plays a prominent role in the latest attacks against the ICWA.

2. To the extent that “children are being removed from their homes in hearings that last no more than a few minutes, in which parents fail to receive a copy of the petition against them or have a chance to present evidence,” this can fairly be said to be the rule – rather than the exception – in a majority of child welfare cases regardless of the family’s ethnicity. It is the disproportionality of Native American children in the system that sets the case apart. See the article of August 30, 2013, ICWA – Adoptive Couple v. Baby Girl – No Room for Exceptions for an analysis of the disproportionality with links to sources.

 

Inquiry into the Circumstances Surrounding the Death of Phoenix Sinclair Released

2014 February 4
Posted by ethoma
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A BRIEF HISTORY

The Permanent Forum on Indigenous Issues, Eighth session, held in New York, the 18th through the 29th of May, 2009, produced an extensive historical report entitled Indigenous Peoples and Boarding Schools: A Comparative Study. The report was prepared by Andrea Smith for the Secretariat of the United Nations Permanent Forum on Indigenous Issues.

At that time, the First Nations people were – for lack of a better term – still decompressing from the impacts of the forced removal of their children from their homes and communities, for purposes of placement in residential schools. The report explains the dynamics of the era:

In 1991, the Indian Affairs minister refused demands for an aboriginal inquiry into residential schools. He said there would be no apologies, no compensation, no admission of government liability, and he said he would shelve any recommendations from the Royal Commission on Aboriginal Peoples which was conducting a report that included residential schools. Instead, rather than focus on government accountability, the government strategy would focus on community healing from abuse. This focus was criticized by many as an attempt to allow the government to escape accountability by framing the issue as one where indigenous peoples were “sick” and needed healing.

By 1992, most churches began issuing apologies for their complicity in residential school abuses, but also demanded that the Canadian government also take responsibility for its role as well. Soon, the level of lawsuits filed against churches threatened some churches with bankruptcy. In 1995, the federal government began to quietly pay out of court settlements to 50 former students in government-run schools without formal acknowledgment of an apology. The Royal Commission on Aboriginal Peoples 1996 report which included five years of research, including research of over 60,000 school files, concluded that there should be public hearings across the country, and that remedies should include compensation to enable communities to heal.

In 1997, a May inquiry into abuse in Alkali Lake and the suicide of one activist, helped prompt more federal intervention. Finally, in 1998, the government set aside $350 million to support community-based healing initiatives to be administered through the independent Aboriginal Healing Foundation.

Among the apologies was that of the Anglican Church of Canada. The apology was delivered by then-Primate Michael Peers to the National Native Convocation in Minaki, Ontario, on August 6, 1993. The apology candidly explained:

I know how often you have heard words which have been empty because they have not been accompanied by actions. I pledge to you my best efforts, and the efforts of our church at the national level, to walk with you along the path of God’s healing

Among the apologies offered by the churches was that of the Presbyterian Church, which issued The confession of the Presbyterian Church as adopted by the General Assembly, June 9th, 1994. The apology stated, in part:

We confess that, with the encouragement and assistance of the Government of Canada, The Presbyterian Church in Canada agreed to take the children of Aboriginal peoples from their own homes and place them in Residential Schools. In these schools, children were deprived of their traditional ways, which were replaced with Euro-Canadian customs that were helpful in the process of assimilation. To carry out this process, The Presbyterian Church in Canada used disciplinary practices which were foreign to Aboriginal peoples, and open to exploitation in physical and psychological punishment beyond any Christian maxim of care and discipline. In a setting of obedience and acquiescence there was opportunity for sexual abuse, and some were so abused. The effect of all this, for Aboriginal peoples, was the loss of cultural identity and the loss of a secure sense of self. For the Church’s insensitivity we ask forgiveness.

It was against that backdrop that the Royal Commission on Aboriginal Peoples report people to people, nation to nation: Highlights from the report of the Royal Commission on Aboriginal Peoples was released in 1996. That report explained:

Abuse and family violence are the most dramatic problems, but they are the tip of an iceberg that began to form when Aboriginal communities lost their independent self determining powers and Aboriginal families were deprived of authority and influence over their children.

The source of social dysfunction we heard most about in public testimony was residential schooling, but inappropriate child welfare policies have also been a persistent and destructive force. The effect of these policies, as applied to Aboriginal children, was to tear more holes in the family web and detach more Aboriginal people from their roots.

Authorities had only one remedy for children thought to be in need of protection -removal from their families. Authorities were not able to alleviate family poverty, fix crumbling houses, or support young parents who had themselves been raised in institutions, without parents as models. They made little or no attempt to place children at risk with members of their kin network or with other Aboriginal families who could help them hold on to their culture and identity.

Child welfare is one of the services that Aboriginal people want most to control for themselves. In 1981, the federal government signed the first agreement authorizing a First Nations agency to deliver child welfare services. Since then, some three dozen Aboriginal agencies have been authorized. They have revised the rules of placement, to recognize the capacity of kin networks to protect Aboriginal children, and emphasized the importance of cultural continuity in placements.

Even so, the well-being of the children is not assured. Aboriginal agencies have inherited many of the problems of the agencies they replaced. They struggle with illfitting rules made outside their communities; with levels of family distress and need beyond their limited resources; and with the challenge of finding ways to protect children at risk while respecting extended family networks that resist interference. Not all Aboriginal child welfare agencies have achieved the high standards to which they aspire.

In June of 2008, Canadian Prime Minister Stephen Harper delivered a heartfelt and passionate apology on behalf of his nation for the Indian Residential School System.

“The treatment of children in Indian Residential Schools is a sad chapter in our history,” said thePrime Minister in his opening remarks. He continued on to say:

For more than a century, Indian Residential Schools separated over 150,000 Aboriginal children from their families and communities. In the 1870′s, the federal government, partly in order to meet its obligation to educate Aboriginal children, began to play a role in the development and administration of these schools. Two primary objectives of the Residential Schools system were to remove and isolate children from the influence of their homes, families, traditions and cultures, and to assimilate them into the dominant culture. These objectives were based on the assumption Aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed, some sought, as it was infamously said, “to kill the Indian in the child”. Today, we recognize that this policy of assimilation was wrong, has caused great harm, and has no place in our country.

Fast forward to 2014, and we find ourselved awaiting a report on the death ion a child of aboriginal descent to be delayed because it may affect the outcomes of some elections by serving up a painful reminder of words long-ago spoken, and long-ago forgotten.

The Inquiry into the Circumstances Surrounding the Death of Phoenix Sinclair was released to the general public by the Attorney General on behalf of the Province of Manitoba on January 31, 2014.

I am almost finished reading report number one of the three volume set. Over the next few days, I will be sharing some excerpts not only from the report, but also some observations about what perhaps should have been given more weight than it was based on my reading of the inquiry transcripts.

 


 

Boston Children’s Hospital to be Investigated by Department of Public Health

2014 February 3
Posted by ethoma
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The Massachusetts Department of Public Health is set to investigate a complaint filed by a Boston Attorney against Boston Children’s Hospital and its “Bader 5″ Psychiatric Unit.

According to a January 31 posting by reporter Beau Berman – who broke the story leading to the complaint – the Department of Public Health has confirmed that it is assigning an investigator to review the complaint

For the benefit of those unfamiliar with the case, in February 2013, 15-year-old Justina Pelletier was checked into Boston Children’s Hospital with flu-like symptoms by her parents. Prior to her admission, Justina had been undergoing treatments for Mitochondrial Disorder at Tufts Medical Center in Boston.

Over three years ago, Justina had been diagnosed with the rare genetic condition of Mitochondrial Disease. Her 25-year-old sister, Jessica, also suffers from the disease. Both girls were treated by a specialist at Tufts Medical Center, Dr Mark Korson. The hospital was only a two-and-a-half-hour drive from their home in West Hartford, Connecticut.

At the recommendation of her doctor at Tufts Medical Center, Justina was admitted to Boston Children’s Hospital to see a gastro-intestinal specialist, Dr. Alex Flores, who had recently transferred from Tufts to BCH.

Almost immediately, a different team of doctors swept in. delivering a different diagnosis, questioning the original diagnosis of mitochondrial disease, explains Beau Berman, Investigative Reporter with FOX News in Connecticut.

The Hartford-Courant explains what happened next:

Within 24 hours of being admitted to Boston Children’s in February, physicians came up with a different diagnosis for Justina: somatoform disorder, a psychologically induced condition that has physical symptoms.

Justina’s parents, Linda and Lou Pelletier, objected to the diagnosis and sought to discharge her from the hospital and take her to Tufts Medical Center, where she was originally diagnosed with mitochondrial disease.

But hospital officials refused and reported suspicions of medical child abuse to the state in February, according to a source familiar with the situation and media reports. Shortly afterward, the state assumed custody of Justina.

“They told me that Mitochondrial Disease did not exist,” her father, Lou, explained in an interview with the United Kingdom’s Daily Mail. “Instead, they said she had Somatoform Disorder, which is effectively a stress-related mental problem.

“They said she had been misdiagnosed, overmedicated and forced to undergo unnecessary procedures. It was as though they were accusing us of needlessly harming our daughter.”

Justina’s parents sought to remove her from Children’s Hospital to take her to a prearranged appointment with her usual physician at Tufts Medical Center, however the astonished parents were told that they could not remove their daughter from the Hospital. Children’s Hospital had filed a form 51A – a mandated report of child abuse or neglect – with the Department of Social Services.

Within 24 hours, a judge ruled in favor of the Department’s motion, ruling not only that Justina had to stay at Boston Children’s Hospital, but also that the Massachusetts Department of Children and Families had legal custody of her.

Just how this came about is worth mentioning. A social worker with the Department of Children and Families filed an affidavit with the juvenile court, about which the Boston Globe provides these details:

The affidavit showed considerable deference to Children’s. It quoted liberally from hospital records and interviews with staff members there, including accusations that Justina’s parents were obstructing her care. It said the Children’s doctors “do not know where the parents picked up the current diagnosis and they are hard to disprove.” It included negative comments from Justina’s Connecticut pediatrician about how Linda and Lou had “fired” multiple doctors and “encouraged” the diagnosis of multiple medical problems.

However, the affidavit failed to mention that the social worker had interviewed Korson, and that Korson had explained the origins of the working diagnosis of mitochondrial disease that he had given Justina. Internal state records show that Korson had explained that the disorder sometimes runs in families and that he had also been treating Justina’s older sister for it.

In plain English, the social worker did what social workers do. She distorted the truth; she lied by act of omission; and she came within an inch or so of perjury, but then, what else is new?1

It is not as if the court would have minded anyway. Paula J. Owen of the Worcester Telegraph Gazette recently wrote an article entitled DCF removing kids at an unprecedented rate, in which she explains: “The Department of Children and Families is removing children at risk of abuse from their families at an unprecedented rate, according to court data as the governor cracks down on the agency following the disappearance of a 5-year-old Fitchburg boy in DCF care whose social worker failed to carry out required home visits.”

They say the new directives err on the side of caution, but they err on the side of job protection.

The article notes: “‘They say the new directives err on the side of caution, but they err on the side of job protection,’” says social worker Khrystian E. King, who works in DCF’s Worcester East office.”2

Here is the social worker’s observation of note: “The judge is actually questioning giving emergency custody to the department because it is so borderline.”3

Previously, the article explains, when Care and Protection petitions were filed in court, “the state was almost always awarded custody of the children. Now, judges are questioning if emergency custody is necessary.”

THE GUIDELINES

On February 13, 2013, “guidelines” for Justina’s care were drafted by Boston Children’s Hospital. The hospital’s approach to her care, according to the document, would be to: “Set strict limitations on medical discussions with the family and eliminate interaction with providers outside our hospital, except as indicated by medical team in relation to clinical picture and collaborative information.”

The Guidelines continue on to state:

Both parents are to be supportive of their daughter and not be involved in the medical management:

i Parents may not administer and medications of flushes to patient. No discussion of diagnostic test results, consulting team recommendations or past medical issues with (on-call residents

ii Limit Communications exclusively through neurology team;

iii No medical discussion to be held in the room or within patient’s hearing.

iv No dictation of care or calling in consult teams or second opinions on own accord.

As if that weren’t enough, the Goals of Admission state that Children’s Hospital intended to: “Reduce the number of providers to a core team in order to reduce potential confusion from use of multiple providers across many institutions and state lines.”

A subsequent report written in April by one of the hospital’s staffers, states that doctors took Justina off many of the medications that she was taking at the time that she was admitted, adding that:

Due to concerns regarding Justina’s regressive behavior changes around her family, the multiple medical procedures and care episodes she has been through – and both parents’ resistance towards recommended treatment plans for Justina – a child protection team was convened.

PULLING THE PIN

It was Dr. Alice Newton who examined Justina’s chart. Newton, who ran the Child Protection Team at Children’s Hospital at the time, never met Justina or her parents face-to-face. This has been reported as being consistent with her usual practice in such cases.4

Dr. Newton – who had worked in child protection for a dozen years – holds a rather unusual dual-appointment, leading the child protection teams at both Children’s Hospital and Massachusetts General. It was Dr. Newton’s “team” at Children’s Hospital that filed the “51A” report with the Department of Social Services, bringing the Department into the case.

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To the extent that confirmation bias may play a factor in her decision-making, her fields of research are listed as “child abuse” and “radiographic evidence” on the Boston Children’s Hospital web site.

On average, at least one family is reported to Child Protective Services by Children’s Hospital every day.

It bears mentioning that Dr. Newton’s team at Children’s Hospital files an estimated four hundred child abuse or neglect reports with DSS per year – an average of over one per day. The majority of the reports allege parental neglect, while a small percentage reportedly involve the more difficult medical cases such as Justtina’s.

“Newton estimated that only 2 to 4 percent – or 8 to 16 cases a year – involved allegations of medical child abuse,” journalists Swidey and Wen of the Boston Globe explain.

Neither graduating from an ivy league college nor being associated with a prestigious medical institution serves as an impediment to publication. Indeed, as recently as April 2012, Newton was published in the journal Current Opinion in Pediatrics, her article being most authoritatively entitled Child abuse pediatrics: prevention, evaluation, and treatment.

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The abstract explains, in part, that: “The field of child abuse pediatrics continues to engender controversy in both medical journals and courtrooms. As scrutiny about the basis for the diagnosis increases, clinicians and researchers work to build a solid base of scientific evidence with thorough and well-designed studies.”

The summary concludes: “Child abuse pediatrics is a well-established and credible medical field. Although child physical and sexual abuse are age-old problems, public acknowledgement and intervention models are relatively new, and medical literature continues to reflect an increasing and deeper understanding of the impact of abuse throughout the world.”

She is indeed a prolific writer. Her Harvard Catalyst Profile lists her as having contributed no less than 22 articles to the literature with various co-authors since 1988.

The Boston Globe explains that, “Alice Newton, the pediatrician who had served as medical director of the Children’s child protection team during much of Justina’s hospitalization, left the hospital to work full time at Mass. General.” Newton said that when children who are victims of alleged medical child abuse are removed from their parents’ care, the picture can improve quickly. “In a number of cases where we’ve actually done that, you see the child just blossom in front of your eyes,” she said.

This is clearly not the case under the current set of circumstances, for Instead of watching their child blossom, Justina’s parents continue to document how the young girl who’d once flourished on ice skates has deteriorated to the point that she can barely manipulate her wheel chair.

“Although it’s been impossible to obtain an independent assessment of her current state, descriptions of her condition in state and hospital records – such as the former figure-skater’s ability to lock and unlock her wheelchair – attest to the modest nature of any improvement,” journalists Swidey and Wen explain in their December 16, 2013, Globe article. In short, Justina’s condition has been worsening, the “parentectomy” that she’d received at the hands of hospital staffers notwithstanding.

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The Child Protection Consultation Team trains new intake workers for the Department of Children and Family Services. From left, Drumm, Lipton and Newton

To the extent that anyone is flourishing, it would appear to be Dr. Newton in her now full-time role as a child protection specialist at Massachusetts General Hospital.

According to an online article dated April 12, 2013, in MassGeneral Hospital for Children News, Dr. Alice Newton and her colleagues Debra Drumm, LICSW, and Susan Lipton, LICSW, round out the Hospital’s three-member “Child Protection Consultation Team.”

According to Lipton, 30 percent of the team’s consults come from the Pediatric Service and are most often related to issues of medical neglect, ingestions, fractures, head trauma and suicide attempts. “Neglect is on the rise and registers more than 60 percent of consultations annually,” the article cites her as saying.

THE COZY RELATIONSHIPS

The cozy relationship between the hospital’s Child Protection Consultation Team and the Massachusetts Department of Children and Families is clear, as the article explains: “Aside from their role aiding clinicians and families at the MGH, the team also works within the Boston community to help with cases and evaluations for organizations including the Children’s Advocacy Center of Suffolk County, the Children’s Trust Fund and the Massachusetts Department of Children and Families, where they also train new intake workers and daycare providers.”

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Nor would Ioana Simona Bujoreanu – who reportedly played a major role in the decision to involve the Department in Justina’s case – appear to encounter any major difficulties in having her opinions published in the peer-reviewed medical journals, particularly in light of considering just who her peers actually are. The August 2013 edition of Seminars in Pediatric Surgery describes her as having co-authored a piece in conjunction with none other than her colleague David R. DeMaso, MD., the Head of the Department of Psychiatry at Children’s Hospital.

Ironically, the article in question, Enhancing working relationships between parents and surgeons, describes a treatment modality – or perhaps soewhat more precisely a treatment ethic – that is diametrically opposed to the reality being exprienced by the Pelletier family. The abstract continues on to explain:

The working relationship between parents and surgeons is fundamental in providing excellent health care to children and adolescents. The breakdown of this working relationship has a significant potential for detrimental effects on individual well-being and adverse systemic outcomes. Collaborative, deferential, and problematic partnership types of family participation in medical decision-making are important models to understand in enhancing and maintaining successful working relationships. A pragmatic approach involving prevention, recognition, and resolution steps is outlined that can help surgeons to avoid as well as to respond effectively to difficult and stressful interactions with parents.

THE CIVIL RIGHTS ISSUES

According to Basic Rights At Inpatient Mental Health Facilities In Massachusetts, a flyer prepared by the Mental Health Legal Advisors Committee in October 2012, patients at inpatient mental health facilities have certain basic rights that are protected. Some rights are protected by the U.S. Constitution, while some are protected by state law.

According to the Committee, patients at inpatient mental health facilities have five specifically enumertated rights, which are required to be conspicuously posted in all such facilities. According to the Committee, all persons in public or private settings have the following rights:

  • The right to “reasonable access” to a telephone to make and receive confidential calls, unless making the call would be a criminal act or cause an unreasonable infringement of another’s access to the telephone.
  • The right to send and receive “sealed unopened, uncensored mail.” If the person is present, staff may open and check mail for contraband, but may not read it.
  • The right to receive visitors of your “own choosing daily and in private, at reasonable times.” Visiting hours may be limited only to “protect the privacy of other persons and to avoid serious disruptions in the normal functioning of the facility or program and shall be sufficiently flexible as to accommodate individual needs and desires.”
  • The right to a humane environment including living space which ensures “privacy and security in resting, sleeping, dressing, bathing and personal hygiene, reading and writing and in toileting.”
  • The right to access legal representation.

Bearing in mind that Justina’s visitation with her parents has been restricted to one hour per week, and that her brief telephone calls are reportedly closely monitored, consider that the Committee explains that: “The facility’s superintendent, director, acting superintendent or acting director may temporarily suspend the right to use the phone if there is a substantial risk of serious harm to you or others and less restrictive alternatives would be futile. Any suspension must be documented in your record and may last no longer than the time necessary to prevent the harm.”

THE HAPPY HOLIDAY

On December 28, 2013, the West Hartford News announced that:

After nearly a year of forced separation from her family, Justina Pelletier, 15, was barred from going home with her family to their West Hartford home for Christmas this year. A postponement in a ruling has ensured the family’s legal battles will continue through the holidays.

Judge Joseph Johnston postponed his final custody decision until Jan. 10, leaving the teen in the state custody in Massachusetts, but also appointed an independent investigator to take a new look at her case.

“I don’t understand how they can do this. I didn’t do anything wrong,” her mother, Linda Pelletier, said as she left the courtroom, sobbing, according to a report published by the Boston Globe.

A gag order originally imposed by judge Johnston continues to prevent all parties from discussing the case with the media.

EXPERTS PROVIDE DISSENTING OPINIONS

“Some child-protection doctors, whose field has recently been elevated to a board-certified specialty, are beginning to draw criticism – even from some unlikely quarters,” explained Boston Globe journalists Neil Swidey and Patricia Wen.

They cite Dr. Eli Newberger – the very pediatrician who founded the child protection team at Children’s Hospital in 1970 running it for three decades – cautioning that “doctors in this new specialty have enormous and really unchecked power.”

Swidey and Patricia Wen explain that as an expert witness in cases around the country, Newberger said he’s seen a tendency for state child-welfare agencies to be “overly credulous to hospitals” and for some child protection teams to show a “reflexive willingness to label and to punish,” especially educated mothers who are perceived as being too pushy.5

barry pollack

Former federal prosecutor Barry S. Pollack is highly critical of the intervention by Children’s Hospital.

Far more critical of Children’s Hospital is Barry S. Pollack, a former federal prosecutor, and the longest-serving board member of the Massachusetts Society for the Prevention of Cruelty to Children. As a lawyer, he has represented several families in cases similar to Justina’s.

In a letter dated December 21, 2013, Pollack wrote to the Commissioner of the Massachusetts Department of Public Health demanding the closure of Bader 5, Harvard’s psychiatric ward at the children’s hospital, “unless and until the Commonwealth can confirm the safety of children there.”

Pollack did not mince words when it came to his criticism of the psychiatric ward:

As reported in the growing number of cases in which allegations are becoming public, Bader 5 healthcare providers, including Gary Gosselin and Colleen Ryan, along with an in-house counsel named Ellen Rothstein, appear to favor hasty accusations of medical child abuse or the like against parents who challenge them. Based on allegations by multiple families, Gosselin and/or Ryan have even taken harsh stances to avoid second opinions that parents wish to seek from other facilities. In my view, one of Gosselin’s Ryan’s, and Rothstein’s biggest weaknesses appears to be an unwillingness to consider the possibility that they have made mistakes, which is a major deficiency in professionalism. A former Children’s Hospital nurse and whistleblower, Katie Higgins, has publicly reported these sorts of problems at Bader 5. As a result of, among other things, arrogance, professional mediocrity, and/or a rush to judgment, Bader 5 appears virtually synonymous with abuse for many children. While Gosselin, Ryan, and Rothstein may deflect blame for malpractice and abuse onto parents, Bader 5 emerges as a serious risk of abuse.

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Nurse Katie Higgins wrote a letter accusing the Children’s Hospital of medical child abuse.

Former Boston Children’s Hospital nurse Katie Higgins, who has followed the case from the start, wrote a scathing letter on January 8, 2014, addressed to Massachusetts Gov. Deval Patrick, Attorney General Martha Coakley, and Massachusetts Department of Children and Families Commissioner Olga Roche.

Higgins’ letter charges that Children’s Hospital is guilty of committing “medical child abuse” by pulling Justina off most of her previous medications for mitochondrial disease. Higgins also asserts that Justina’s health has deteriorated as a result.

Higgins wrote: “As advocate for the family, I informed Department of Mental Health licensing director, Liz Kinkead of the breach of law regarding Justina’s commitment to a locked psychiatric unit and was told that DMH was deferring to the medical expertise of Boston Children’s Hospital.”

Higgins continued on to explain that:

From the perspective of the teen whose life has been derailed, she is the ward of a state devoid of compassion and conscience, prohibited from contact with every facet of her life that holds meaning for her. I am submitting this information, which has been made public, in the form of a complaint against Judge Joseph Johnston, Dr. Colleen Ryan and the Massachusetts Department of Children and Families for the emotional and medical abuse Justina Pelletier has suffered for nearly a year. It would be far more accurate to call the “treatment” forced on Justina by its more proper term, “torture.”

“Acute psychiatric hospitalization is intended as an emergency intervention for a child at risk of harm to self or others. Judging from the article, Justina has never fit this description. She should never have been moved to a psychiatric ward,” Marion Freedman-Gurspan explains in a letter to the editor of the Boston Globe published on December 22, 2013.

As a former director of policy and planning for child-adolescent services for the Massachusetts Department of Mental Health, she provides credible – and highly critical – commentary regarding the Justina Pelletier case, writing:6

No hospital or state agency should be allowed to use hospitalization as a weapon to resolve disagreements about diagnoses, nor should disagreements be a cause for terminating parental custody and denying a child daily access to her parents. Independent physicians, unaffiliated with Children’s Hospital, should have been called in early on.

The excuse that the DCF does not have a medical director is bogus. The Department of Mental Health could have been called in to assist, or Medicaid could have turned to its cadre of independent psychiatrists who staff its Child Psychiatry Access Project. This seems not to have happened.

Instead, Children’s Hospital has been allowed to bully the child and family. The state, which took over as a parent, has failed to protect the child from this bully.

NOT THE ONLY ONES

Cristy Balcells, executive director of Mito-Action, a Boston-based nonprofit group supporting mitochondrial disease patients and their families, told Boston’s National Public Radio affiliate WBUR on Morning Edition that this is not the first time that children have been taken from their parents because of a dispute with doctors about how to treat the disease.

In commenting on the WBUR broadcast, a spokesperson from the Boston-based advocacy organization Coalition for Diagnostic Rights explained:

People wonder whether what’s happened to Justina and her parents happens to others, and the answer to that question is a resounding yes.

It is appallingly common for doctors to deny basic rights to patients and parents when somatoform disorder is considered. It is appallingly common for doctors to mistakenly deny medical care to those who need it based on reckless diagnosis of somatoform disorder.

Journalists Neil Swidey and Patricia Wen of the Boston Globe explain: “These cases are rare, but not as rare as one might think. In just the last 18 months, Children’s – which given its reputation attracts many of the toughest cases from across the Northeast – has been involved in at least five cases where a disputed medical diagnosis led to parents either losing custody or being threatened with that extreme measure. Similar custody fights have occurred on occasion at other pediatric hospitals around the country.”

The Hilliard family’s nightmare began in 2006, when their daughter, Eithene, was born with multiple birth defects. By age 2 1/2 her condition worsened, and she suggested to doctors at Boston Children’s Hospital that her daughter should be tested for mitochondrial disease.

When she and her husband approached Children’s Hospital with the possibility that she had mitochondrial disease, they were immediatly met with resistance, particularly from the hospital’s genetics and metabolism departments, Jessica Hilliard explained in an interview to The Blaze.

Reporter Liz Klimas notes that the Hillard family kept pressing and eventually had a tissue sample taken from their daughter’s thigh. The mitochondria in the cells of this tissue and other genetic aspects were analyzed. This test, Hilliard said, was the “gold standard” for a mitochondrial diagnosis at the time that it was conducted on her daughter. Liz Klimas explains what happened next:

Hilliard said the genetics department that had analyzed her daughter’s muscle sample “didn’t believe the results,” which favored a diagnosis of mitochondrial disease. Instead of telling the Hilliards of this initial finding, the mother said doctors withheld the information for three months while they got another specialist elsewhere to test the sample as well. That specialist eventually agreed with the mito diagnosis.

In March of 2011, the Hilliards’ daughter took a turn for the worst, and it was recommend by some at the hospital that they prepare for end-of-life care. At this point, the same team that had originally diagnosed Eithene with mitochondrial disease revoked their diagnosis, a course that her everyday care specialists disagreed with.

“When the metabolism team learned the Hilliards would be preparing for hospice care, they accused the parents of not taking steps to help her daughter when these doctors believed she could actually be treated and live,” Klimas explains.

But it did not end there. The hospital’s child protection team had been advised of the Hilliard’s situation, and their younger son had been admitted to the hospital with a long fever and an antibiotic-resistant ear infection. At some point during his care, he also took a turn for the worse, exhibiting symptoms that were indicative of mitochondria malfunction.

Gabriel was diagnosed with mitochondrial disease in 2011, and his parents were accused of medical child abuse by Boston Children’s Hospital.

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Jessica Hilliard with son Gabriel.

“My husband and I knew what was happening. As soon as we understood that child protection was getting involved, we immediately understood that they were going to try to take custody from us because that was their pattern. By this point I had met several families who had gone through this at Boston Children’s,” Jessica Hilliard told FOXCT News in December 2013.

Far less publicity has been provided to Elizabeth Wray, who was held in Boston Children’s Hospital’s Bader 5 unit under remarkably similar circumstances. As Neil Swidey and Patricia Wenof the Boston Globe explain it:

The day before Justina had been moved into Bader 5, a 16-year-old girl named Elizabeth from upstate New York had been discharged from that same unit, after she had been in state custody at Children’s for more than six months.

Elizabeth’s case had also hinged on a dispute over whether her problems were physical or psychiatric. However, in her case the disagreement involved a different controversial illness, something called PANDAS or PANS, an autoimmune neuropsychiatric disorder believed to cause obsessive compulsive disorder. That dispute had led to allegations of medical interference being filed against the girl’s parents and to the state taking custody of the girl. And the representative from the Children’s psychiatry service who played a key role in Elizabeth’s case was the same psychologist who had pushed to change Justina’s diagnosis to somatoform disorder, Simona Bujoreanu.7

The Wray family was allegedly told by doctors that Elizabeth was clear to be transferred to another hospital, however, the following Monday they learned that the hospital contacted the Department of Children and Families child protective services unit, urging them to file for temporary custody of Elizabeth and to admit her to the Bader 5 psychicatric ward.

The family was told to appear in court for a custody hearing “based on allegations made by BCH,” their lawyer said in an email sent to supporters.

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Protestors rally in support of Elizabeth Wray and to promote awareness at Children’s Hospital.

Just as in Justina’s case, a gag order was imposed by the court preventing the family or their attorney from discussing the case outside the courtroom. As Steve Annear, Staff Writer with with BostInno explains it, the family’s lawyer, Beth Alison Maloney, wrote on her Facebook page: “The court has issued a temporary gag order necessitating no further comments or discussions by my clients or me, and the deletion of prior references on my facebook fan pages, to a child in the care of Boston Children’s Hospital. Both my clients and I will comply with the order.”8

According to a posting on the Free Elizabeth Wray Facebook page: “After 10 months as a ward of the State of Massachusetts, Elizabeth returned home in August 2013.” Her condition is reported as improving.

The tragic story of young Chelsey Cruz was well detailed by the Hartford-Courant.

“When Kimberly Castro buries her only daughter next week, she’ll do so with a clear conscience, but with fury in her heart,” wrote Courant staff writer Hilary Waldman.

Chelsey became embroiled in a series of events involving Boston Children’s Hospital that remarkably mirror those of the Pellitier and Wray families, suggesting the possibility that part of Boston Children’s Hospital’s modus operandi may be to target families from out-of-state.

Her mother testified before a Connecticut committee investigating its own department of social services on December 18, 2008, detailing her experience with Boston Children’s Hospital, saying:

We sought help from the Boston Children’s Medical Center. And at first, they agreed and began to wean her off the medications. She began to look and feel better. However, one fatal visit occurred when a chief doctor came on the scene. He demanded that Chelsey be put back on the experimental medications and threatened to call DCF if I resisted. I asked to seek a second opinion and was immediately dismissed. My daughter was forcibly admitted and guards were placed outside her door, keeping me from my child.

Massachusetts Department of Social Services and the Department of Children and Families in Connecticut worked to entrap us, and an order of temporary custody was obtained in Boston. I was told by the Boston Department of Social Services that I was no longer able to make any medical decisions for Chelsey. I went to the local newspapers with my story, sharing my pain and my hope to gain justice.

The Boston Globe explains with respect to the Pellitier family that: “When the judge decided to maintain temporary custody of Justina with the state, the Pelletiers were furious. They took their complaints to every authority they could think of: the district attorney, the attorney general, the governor’s office, even the FBI.” No one intervened to help the family.

According to Kimberly Castro’s submission to the committee, she contacted Drs. William Harmon and Nancy Rodig – both nephrologists at Boston Children’s Hospital – Clarissa Lebron, a supervisor at the Department of Children and Families, as well as Richard Blumenthal, Attorney General of Connecticut at the time. In addition, her daughter wrote a letter to the judge presiding over her case pleading for his intervention on her behalf.

It was all to no avail. On March 12, 2008, the Hartford-Courant reported that Chelsey had died of kidney failure – precisely the condition that her mother had sought to prevent.

Castro said she will never believe that her daughter died of lupus or kidney failure. “I’m 100 percent sure that my daughter died of adverse side effects of the drug called Cellcept,” Castro said. “Regardless of that, they had no right to force her to take a drug she didn’t want.”

Castro told DCF that this would happen. “I tried to warn them,” she said.

“And they never listened.”

 

This posting is an extract of a more comprehensive article that is currently being written for posting at Lifting the Veil.


1. Account of court proceeding drawn from Neil Swidey and Patricia Wen, “Frustration on all fronts in struggle over child’s future,” Boston Globe, (December 16, 2013). See also for example Rafferty v. Massachusetts Department Of Children And Families, Civil Action No. 10-40114-FDS. United States District Court, D. Massachusetts. (2011) (DCF caseworker falsified report while others “collaborated in, approved, furthered, or acquiesced in this conduct”); Howard v. Malac, 270 F.Supp.2d 132 (2003) (DSS investigators allegedly signed “false affidavits,” communicated “through a hospital social worker, that she would never see her children again if she did not reinstate the restraining order”); Matt Murphy, ” Social worker in Jeremiah Oliver case failed to provide basic support, Massachusetts Department of Children and Families commissioner says,” MassLive.com, (December 30, 2013) (Commissioner admits supervisor provided “false information” indicating children were taken care of; “misled the department to believe this was a family that was stable” even though evidence was to the contrary); David Armstrong, “Step Falsified in Abuse Citations,” Boston Globe, (March 27, 1997) (caseworker founds case “after visiting with you and your children and talking to other people who know your family,” however doctor was in another state at time of alleged incident); David Armstrong and Doris Sue Wong, Boston Globe “State Cuts Ties With Agency Over Scalding,” (February 17, 1994) (private agency “case workers falsified reports, claiming to visit some families when they had not”); Commonwealth v. Newman, 32 Mass. App. Ct. 148 (1992) (caseworker for Department of Youth Services alleged to have taken money from a family member of a youth committed to DYS); Commonwealth v. Carp, 47 Mass. App. Ct. 229 (1999) (evidence suppressed as DSS “investigator misrepresented to the defendant that the interview was not a criminal investigation, stated that Miranda warnings were not required and that the defendant did not need an attorney, and failed to inform the defendant until the end of the interview that incriminating evidence would be passed on to the police”); Pamela Ferdinand, Boston Globe, “Charges Put Curb On Agency Adoptions,” (March 2, 1995) (“nonprofit adoption agency that has placed more than 500 children has been ordered to stop accepting new clients, amid allegations of overbilling, falsifying birth mothers’ medical records and diverting funds for personal use”).

2. Paula J. Owen, “DCF removing kids at an unprecedented rate,” Telegram And Gazette (January 19, 2014). For a better understanding of this phenomenon see generally my article Defensive Social Work at Lifting the Veil.

3. That juvenile court judges frequently rubber stamp decisions by departments of social services is beyond dispute. See e.g., Mark R. Brown, Rescuing Children from Abusive Parents: The Constitutional Value of Pre-Deprivation Process, 65 Ohio State Law Journal 913 (2004)(“Remarkable as it may sound, Florida’s judges found that DCF correctly estimated probable cause in ninety-eight out of every one hundred cases”); Daniel Leddy, “Our Foster-Care System Fails Kids And The City,” SILive.com, (July 27, 2010) (“judges were the real culprits for having allowed the court to be reduced to the status of a rubber stamp for whatever the agencies wanted”); William M. Brooks, The Tail Still Wags the Dog: The Pervasive and Inappropriate Influence by the Psychiatric Profession on the Civil Commitment Process, 86 North Dakota Law Review 259 (2010) (“When judges defer to psychiatrists at a rate between ninety and one hundred percent of the time the psychiatrist experts actually become the decision-makers in the civil commitment process”): Martin Guggenheim, Nevada Law Journal, Spring (2006) {“studies have consistently criticized the Family Court judges in New York City for their strong tendency to ‘rubber stamp’ agency recommendations to remove children from their parents”); California State Auditor, Bureau of State Audits, Los Angeles County: The Department of Children and Family Services Can Improve Its Processes To Protect Children From Abuse and Neglect, October (1996) (California State Auditor noting that the Los Angeles juvenile court follows the recommendations of DCFS is 98 percent of the cases it hears).

4. Neil Swidey and Patricia Wen, “A medical collision with a child in the middle,”Boston Globe, (December 15, 2013). This is a very common phenomenon in the fields of child abuse and domestic violence. See for example an early case involving a former Child Protective Services case worker charged with the death of her adopted child involving allegations of Munchausen’s Syndrome by Proxy, People v. Phillips (1981) 122 Cal. App.3d 69 [175 Cal. Rptr. 703] (“Dr. Blinder had not examined appellant, nor had he treated patients who displayed the syndrome which was the subject of his testimony. Rather, his testimony was based upon various reports in professional journals, copies of which were made available to the jury”); United States v. Fitzgerald, No. 02-4978 (4th Cir. Nov. 17, 2003)(unpublished) (testimony from FBI clinical forensic psychologist such that child molesters commonly often begin with innocuous behavior to gain child’s trust and then proceed to borderline behavior to test whether child is receptive excluded as being unreliable, and because it would not assist trier of fact); Mickens-Thomas v. Martinez, No. 04-3843 (3d Cir. July 7, 2005)(unpublished) (in case involving rape and murder of 12 year old child, state offers testimony from psychologist Dr. Veronique Valliere, who opines generally on risks of recidivism but disclaims knowledge of parolee’s particular case); United States v. Dixon, 413 F.3d 520 (5th Cir. 2005), cert. granted, 126 S. Ct. 1139 (2006) (criminal defendant offers testimony on battered women’s syndrome from Dr. Toby Myers, domestic violence expert, but trial court excludes testimony as irrelevant and jury convicts); Shields v. Dretke, No. 04-70008 (5th Cir. Feb. 17, 2005) (unpublished), cert. denied, 126 S. Ct. 28 (2005) {“Even though we are somewhat troubled by the absence of a personal interview of Shields by Dr. Gripon, we cannot say that counsel was ineffective in failing to make a Daubert objection to Dr. Gripon’s testimony”); United States v. LeBlanc, No. 01-1517 (6th Cir. Aug. 28, 2002) (unpublished) (Charged with sexual assault of minor step-daughter, defense offers testimony from psychologist Dr. Terence Campbell regarding unreliability of evidence gleaned from child interviews. District court excludes testimony, jury convicts, exclusion affirmed on appeal); United States v. Mamah, 332 F.3d 475 (7th Cir. 2003) (Experts may have been qualified in their respective fields, and their research may have been methodologically sound, but they relied on insufficient facts or data to link their theories to facts of case); United States v. Young, 316 F.3d 649 (7th Cir. 2002) (Man charged with interstate domestic violence; victim recants allegations at trail such that he abducted and beat her. Prosecution calls psychiatric mental health nurse, Dr. Ann Wolbert Burgess, who opines over defendant’s objection that victim’s recantation is typical behavior pattern for domestic abuse victims. Jury convicts, defendant appeals, case affirmed on appeal); United States v. Bertling, 370 F.3d 818 (8th Cir. 2004) (Proposed expert was not psychologist or psychiatrist and had not examined defendant, but merely proposed to testify on general issues involving domestic violence); Hellums v. Williams, No. 00-2100 (10th Cir. Aug. 8, 2001) (unpublished) (In child molestation case, prosecution introduced expert testimony from psychologist Dr. Robert Zussman and counselor Julia Barker. Jury convicted, however in federal habeas corpus proceedings, case was reversed as rules hold that expert opinions on victim’s credibility are beyond scope of experts’ specialized knowledge); United States v. Martinez, No. 00-2054 (10th Cir. Mar. 26, 2001) (unpublished), cert. denied, 534 U.S. 881 (2001). (Defendant accused of sexual assault of ten-year-old girl. victim’s mental health counselor, Dr. Judith Tyler, testifies as prosecution expert, opining without objection that victim’s symptoms are consistent with trauma. Jury convicts, admissibility affirmed on appeal); United States v. Velarde, 214 F.3d 1204 (10th Cir. 2000), cert. denied, 541 U.S. 1069 (2004) (In prosecution for sexual abuse of child on Indian reservation, government offers testimony from two psychologists such that child’s statements and behaviors are consistent with episode of abuse. Reversed, as court erred in failing altogether to exercise gatekeeping function, and error was not harmless).

5. Reference to Dr. Newberger sourced from Neil Swidey and Patricia Wen, “A medical collision with a child in the middle,” Boston Globe, (September 15, 2013). Newberger and his Child Protection Team at Boston Children’s Hospital enjoy a long reputation of working hand-in-glove with Massachussetts’ child protection agency. See e.g., Custody Of Two Minors, 19 Mass. App. Ct. 552 (1985) (“The Department offered as evidence the March 31, 1983, medical report which consisted of a letter to the Department from Dr. Eli Newberger of the Children’s Hospital Medical Center incorporating reports from him and others concerning the February 24, 1983, visit. The mother objected, claiming that the letter and reports were hearsay and had not been provided to counsel prior to the hearing in accordance with counsel’s request under the Department’s rules. Her objections were overruled. Dr. Newberger’s letter and the accompanying reports were devastating, and the judge, on the Department’s recommendation, committed the children to the Department”).

6. Marion Freedman-Gurspan, letters, Boston Globe, (December 22, 2013). Marion Freedman-Gurspan is a former director of policy and planning for child-adolescent services for the Massachusetts Department of Mental Health. She also held tenure on the Steering Committee of the Massachusetts Consortium for Children with Special Heath Care Needs, and is listed as a member of the Massachusetts Society for the Prevention of Cruelty to Children in Massachusetts All-Payer Claims Database: Setting Expectations for Preliminary Data Release, a research paper published by the Division of Health Care Finance and Policy on May 22, 2012.

7. Neil Swidey and Patricia Wen, “Frustration on all fronts in struggle over child’s future,” Boston Globe, (December 16, 2013).

8. Steve Annear, “Parents Claim They Lost Temporary Custody of Child During Battle with Boston Hospital Over Proper Treatment,” BostInno (October 12th 2012).

Ontario Continues to Pack Courts with Children’s Aid Society Affiliates

2014 January 19
Posted by ethoma
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THE UPPER ECHELON

On Friday, January 17, 2014, the Ministry of the Attorney General issued a bulletin announcing that Ontario has appointed a new judge to the Ontario Court of Justice.

Justice Lynda Susan Ross has been assigned by Chief Justice Annemarie E. Bonkalo to preside in Windsor, effective January 29, 2014. As for her unique qualifications for the position, the bulletin explains:

Following a year as a staff lawyer for Children’s Aid of Toronto, Justice Ross joined the practice of Hartrick and Associates of Toronto, focussing on family and child protection litigation. In 1993, she became a member of the legal panel of the Office of the Children’s Lawyer and, in 1995, established a practice as a sole practitioner, working in all areas of family law. She has practiced collaborative family law and has been a child protection mediator, providing services to Children’s Aid Societies and courts in Toronto, Peel and others.

In a notice posted on December 13, 2013, the Ministry of the Attorney General announced that: “Ontario has appointed two new judges to the Ontario Court of Justice, effective December 25, 2013.” Justice Katherine Stacy Neill was among the two judges named. Among her disdinguished qualifications:

Justice Neill was in-house counsel with the Children’s Aid Society of Brant until 2004, when she became its manager of legal services.

Justice Neill “has also been a member of the Senior Counsel Network Group for Ontario Children’s Aid Societies,” the notice explains. Chief Justice Annemarie E. Bonkalo assigned Justice Neill to preside in Kitchener.

A bulletin issued by the Ontario Ministry of the Attorney General on April 26, 2013, bears the headline: “New Judge Appointed to the Ontario Court of Justice.”

“Ontario has appointed a new judge to the Ontario Court of Justice. Justice Kathleen Baker has been assigned by Chief Justice Annemarie E. Bonkalo to preside in Brantford, effective May 8, 2013,” the bulletin explains. Among Justice Kathleen Baker’s qualifications:

Justice Kathleen Baker was called to the Bar in 1989 and was a legal supervisor, then in-house counsel for the Children’s Aid Society of Brant. From 1990 to 1994, she was in private practice specializing in criminal and family law, including child protection matters. For six years, Justice Baker worked as senior legal counsel for the Children’s Aid Society of Durham, and of Hamilton. More recently, she has been in private practice, dealing with child protection proceedings as well as custody and access, support and property issues. Justice Baker has also been a panel member for the Office of the Children’s Lawyer.

On January 16, 2009, the Canadian Newswire reported that “The province has appointed three judges to the Ontario Court of Justice, effective January 28, 2009.” Among the three new judges appointed was Madam Justice Manjusha Pawagi. Among her qualifications:

Madam Justice Manjusha Pawagi was called to the Bar in 1997. Since then she has practiced family law. She worked as counsel for the Children’s Aid Society (CAS) of Toronto from 1997 to 2004, where she represented the society in child protection cases in both the Superior Court of Justice and the Ontario Court of Justice. While with the CAS she also designed and delivered training for social workers, foster parents and CAS counsel on topics such as amendments to the Child and Family Services Act, court conduct, and the Human Rights Code. Later, she served as counsel for the Office of the Children’s Lawyer, where she represented children in child protection and custody and access cases.

Chief Justice Annemarie E. Bonkalo assigned Justice Pawagi to preside in Brampton.

On June 22, 2009, The Sault Star reported that: “The region’s newest Superior Court of Justice position will be filled by a local barrister.”

That local barrister was Edward (Ted) Gareau, and he had just been “appointed judge of the province’s highest court.”

Among judge Gareau’s qualifications:

He was president of the Algoma District Law Association from 2004 to 2008 and sat on numerous voluntary boards including as president of the Children’s Aid Society of Algoma’s from 1992 to 1997. Gareau’s wife, Nadine, worked as the CAS legal counsel for 12 years.

On November 1, 2010, the Ministry of the Attorney General issued a bulletin announcing that two judges had been appointed to the Ontario Court of Justice. Among the two appointees was Justice Kevin Sherwood. The bulletin explains that:

Justice Sherwood has served as duty counsel for Legal Aid Ontario, as the solicitor of record for the Children’s Aid Society and as an agent of the Crown for the Attorney General of Ontario in Bruce County. From 1984 to 2009, he represented children on behalf of the Office of the Children’s Lawyer.

On August 6, 2010, Canada’s Department of Justice announced that: “The Honourable Mary Jane Hatton, Senior Judge of the Family Court Branch of the Superior Court of Justice of Ontario, is appointed Judge of the Superior Court of Justice of Ontario,” in Durham. Among judge Hatton’s qualifications:

Madam Justice Hatton was appointed Senior Judge of the Family Court Branch in 2008. She was appointed a Judge of the Family Court Branch of the Superior Court of Justice of Ontario in 1999 and a Judge of the Ontario Court of Justice in 1990. Prior to her appointment, she was Chair of the Case Management Operations Committee for the pilot project in the Toronto Family Court. She was counsel at the Children’s Aid Society of Metropolitan Toronto for five years and was in private practice for nine years specializing in family law.

Madam Justice Hatton was one of three appontmented judges announced at the time by Hon Rob Nicholson, P.C., Q.C., M.P. for Niagara Falls, Minister of Justice and Attorney General of Canada.

“A pair of lawyers will put on a new set of robes Wednesday when they assume their posts as judges of the Ontario Court of Justice,” notes Law Times in an article posted on December 1, 2008.

Among the two judges that Attorney General Chris Bentley named to the Court was Justice Nathalie Gregson. Among her qualifications:

She has represented the Children’s Aid Society for the districts of Nipissing and Parry Sound, helped organize a collaborative family law program in North Bay, and acted for children as an Office of the Children’s Lawyer panel member.

On March 30, 2007, The Ministry of the Attorney General announced the appointment of Roselyn Zisman as a provincial judge to the Ontario Court of Justice. Among her qualifications:

Madam Justice Zisman was called to the Bar in 1976 and since then has been in private practice in family, child protection and criminal law. She has also advised and represented several Children’s Aid Societies, including Native Child and Family Services.

On December 15, 2003, a press release issued by the Ontario Ministry of the Attorney General announced the appointment of Margaret McSorley and Robert Rogerson as provincial judges to the Ontario Court of Justice.

Regarding the appointment of Margaret McSorley, the release explains “she was senior counsel at the Family and Children’s Services of St. Thomas and Elgin. Madam Justice McSorley was a board member of the Make-A-Wish Foundation and the Thames Valley Addiction Assessment Referral Centre.”

With respect to Justice Rogerson. among his qualifications: “Mr. Justice Rogerson was a founding board member of Victim Services of Perth County and served as a member of the Child Abuse Review Team for the Children’s Aid Society in Perth County.”

LOWER RUNGS OF JUDICAL LADDER

As for positions that occupy lower rungs on the judicial ladder, on May 25, 2011, the Ministry of the Attorney General announced that the province has appointed eight new Justices of the Peace to the Ontario Court of Justice effective May 25, 2011.

Among the eight appointees in the group was Peace Claire Thérèse Robinson Winchester. Among her unique qualifications for the position are that:

Justice of the Peace Winchester has been a board director of the Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry.

On July 28, 2011, the Ministry of the Attorney General issued a bulletin announcing that six new Justices Of the Peace and two Regional Senior Justices Of The Peace were appointed to the Ontario Court Of Justice.

Among those appointed to the position of Justice of the Peace was Cristina M. Almeida Santos. As the bulletin explains her qualifications for the position:

Justice of the Peace Cristina M. Almeida Santos has more than 25 years of experience managing the delivery of victim and social services in the Toronto area. Most recently, she served as executive director at the Abrigo Centre, where she played a key role in the development of the centre’s Partner Assault Response Program. Prior to joining the Abrigo Centre in 1990, she held positions at the Catholic Children’s Aid Society of Metropolitan Toronto, Toronto Western Hospital, and the Mississauga YMCA. An active volunteer in her community, she has put her skills and knowledge to work for many social services organizations . . .

On October 12, 2010, The Minisry of the Attorney General announced that the province had appointed 10 new justices of the peace to the Ontario Court of Justice effective October 13, 2010.

Among the appointees was Justice of the Peace Anna Marie Hampson. The bulletin explains that Justice Hampson “has acted as a panel lawyer for the Office of the Children’s Lawyer, and as a per diem Crown attorney, prosecuting Provincial Offences Act matters in Oxford County, London and Sarnia. Justice of the Peace Hampson has been a member of the board of directors of the Children’s Aid Society of London and Middlesex and a member of the University of Western Ontario Health Sciences Research Ethics Board.”

On October 2, 2009, the Ministry of the Attorney General announced the appointments of four new Justices of the Peace to the Ontario Court of Justice in Western Ontario. The appointments were to become effective on October 14, 2009.

Among the appointees was His Worship Abdul Ali Chahbar. Among his qualifications are that His Worship Chahbar “served as director of both London’s Children’s Aid Society and Merrymount Children’s Services.”

On February 27, 2009, the Ministry of the Attorney General announced that the province had appointed two new justices of the peace to the Ontario Court of Justice, effective March 4, 2009.

Among the appointees was Her Worship Ana Cristina Costa. Among Her Worship Costa’s unique qualifications was that “she served as Director on the Board of the Catholic Children’s Aid Society from 1995 to 2001 and as Chairperson of the Child and Family Services Committee for a year. “

On June 29, 2007, the Ministry of the Attorney General issued an announcment to the effect that nine Justice of the Peace appointments were made to the Ontario Court of Justice, effective July 11, 2007.

Among the appointees was Justice of the Peace Ernest Parsons, who, prior to his appointment, “was chair of the board of directors of the Hastings Children’s Aid Society and the Hastings and Prince Edward District School Board.”

On May 18, 2007, the Ministry of the Attorney General announced 11 Justice of the Peace appointments, to become effective May 30, 2007. Justice of the Peace Rhonda Shousterman was among the appointees, and her qualifications included that of her having had “worked as legal counsel for the Catholic Children’s Aid Society of Toronto and the Ontario Ministry of Government Services.”

CONCLUSION

Such conflicts of interest among Canada’s judiciary are nothing new, and they are not restricted to Ontario. The Manitoba Historical Society provides biographies of “Memorable Manitobans,” among them Mary A. Wawrykow, who “was appointed Queen’s Counsel in 1965 and Judge of the Winnipeg Juvenile and Family Court in 1968. In 1975 she was appointed Judge responsible for the Provincial Judges’ Court of Winnipeg.”

Mary A. Wawrykow was well-connected to the inner circle. Her biography notes that she believed that “community service is the rent we pay for the privilege of living upon this earth,” and that based on her belief “she served on the boards of numerous organizations.” Her biography continues on to explain:

She was on the Advisory Board of the Holy Family Home, a member of the Dominion Executive of the Ukrainian Canadian Women’s Council, the Business and Professional Women’s Club of Winnipeg, the Board of the Canadian Council of Christians and Jews, the Ukrainian Catholic Women’s League, the Children’s Aid Society of Winnipeg, the Board of the United Way, the City of Winnipeg Housing Corporation, and the Manitoba Association for Equality in Education. She was Vice-Chairman of the Driver’s Licensing Appeal Board.1


1. Jewish Child and Family Service provides an insightful history of its role in Canadian child welfare, and provides information about the former Children’s Aid Society of Winnipeg with which Mary A. Wawrykow was involved: “We faced a crisis during the mid 80′s when the Provincial Government decided to close down the Children’s Aid Society of Winnipeg and develop six new community-based organizations to administer the Child and Family Services Act. The government indicated their intention to withdraw our child welfare man¬date, saying that the needs of the Jewish people, as all other ethnic groups, would be met by representation on the various new boards of these new quasi-private organizations. With the political support of the community we were able to maintain our mandate and have since become better integrated into the larger child welfare system. In 1991, when the government closed down the six separate organizations and centralized services once again, our services were unaffected and our mandate reaffirmed.”

With regard to the Children’s Aid Society of Winnipeg, the Report of the Aboriginal Justice Inquiry of Manitoba by the Aboriginal Justice Implementation Commission explains (chapter 14) that an Aboriginal service organization was established in 1984 to serve Aboriginal families in Winnipeg “as the result of a determined effort by Aboriginal people to remove services for Aboriginal families and children from the Children’s Aid Society of Winnipeg. Aboriginal people were convinced that the C.A.S. of Winnipeg was more interested in apprehending children than in providing support to parents to help keep their families together.”

Historical Institutional Abuse Inquiry Holds First Public Hearing

2014 January 14
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The Historical Institutional Abuse Inquiry held its first public hearing on Monday, January 13, 2014. The Inquiry is examining allegations of child abuse in children’s homes and other residential institutions in Northern Ireland spanning the period of 1922 to 1995.

It is the largest public inquiry concerning child abuse ever held in the United Kingdom. To date, it has been contacted by over 400 potential witnesses, saying that they had been abused while in care during their childhoods.

Turnout is truly international, as the Belfast Telegraph explains: “Coming from all over Northern Ireland, the Republic, Britain and Australia, the witnesses – many of whom will only be identified by a code to protect their anonymity – may finally get recognition of the wrong that was done to them after the inquiry reports to the Executive early in 2016.”

The Historical Institutional Abuse Inquiry builds on the foundation set by the Commission to Inquire into Child Abuse, which was established in 2000 to investigate allegations of abuse at Catholic-run children’s institutions in Ireland. The Ryan Report, as it is commonly known, was released on May 20, 2009. The Ryan Commission examined allegations of child abuse at Catholic-run children’s institutions in Ireland spanning a 60-year period.

The main findings of the Ryan report, derived from the executive summary, included:

  • Physical and emotional abuse, as well as and physical and emotional neglect, were prominent features of the institutions.
  • Sexual abuse occurred in institutions, and this was particularly so in boys’ institutions.
  • Schools were run in a harsh and regimented manner that served to impose unreasonable and oppressive discipline on children and staff alike.
  • Children frequently went hungry. At its best the food was inadequate, and it was was inedible and badly prepared in many of the schools.
  • Many witnesses testified to having been constantly fearful – even terrified – and that these feelings impacted on every aspect of their lives in the institution.
  • Prolonged and excessive beatings with implements intended to cause maximum pain occurred with the knowledge and complicity of senior staffers.
  • Children were subjected to constant criticism, and verbal abuse. Many were told that they were worthless.
  • Some children lost all sense of their identity and kinship, never fully recovering from that loss.
  • Children who absconded were severely beaten, at times publicly. Some had their heads shaved, and were humiliated in other ways.
  • Inspectors, on far-too-rare visits, rarely – if at all – spoke with the children in the institutions.

The five-volume report concluded that church officials encouraged beatings, and consistently shielded paedophiles from arrest amidst a “culture of self-serving secrecy.”

The report also found that government inspectors failed to prevent the chronic beatings, rapes, and humiliation of children who were wards of the institutions.

The findings of the Ryan Report may not be used for criminal prosecutions, at least in part because the Christian Brothers denomination successfully sued the Commission in 2004 to prevent the identities of all of its members from being revealed, regardless of whether they were dead or alive.

The reformatory and industrial schools depended on rigid control by means of severe corporal punishment and the fear of such punishment.
- Sir Ryan

One chapter of the five volume report deals with a Christian Brothers’ school called Letterfrack. The school was founded in 1885 and was situated in a remote hillside location, miles away from public transport. The Ryan report described it as “an inhospitable, bleak, isolated institution accessable only by car or bicycle and out of reach for family or friends of boys incarcerated there.”

The report continues on to note that: “Physical punishment was severe, excessive and pervasive and by being administered in public or within earshot of other children it was used as a means of engendering fear and ensuring control.”

Yet physical punishment pales in comparison to what many young wards had to endure, as the report explained:

Sexual abuse was a chronic problem. For two thirds of the relevant period there was at least one sexual abuser in the school, for almost one third of the period there were two abusers in the school and at times there were three abusers working in Letterfrack at the same time. Two abusers were present for periods of 14 years each and the Congregation could offer no explanation as to how these Brothers could have remained in the School for so long undetected and unreported.

The investigation included St Joseph’s Industrial School, which was established in 1862 and was certified for 145 boys. The report notes that: “Serious allegations were outlined both in documents and in oral testimony about a Brother who was violent and dangerous over a number of years.”

The Brother was moved from a day school because his violence towards children was causing severe problems with their parents. He was transfered to another industrial school. “Such a move displayed a callous disregard for the safety of children in care,” the report explained.

At St. Joseph’s school, “Children were left unprotected and vulnerable to bullying by older boys and this was stated to be a particular problem in Tralee both in terms of physical and sexual abuse.”

Sexual abuse by staff was not as persistent a problem as it was in some other facilities, however one Brother was cited by complainants and others as “behaving inappropriately” with the boys. He was on the staff for 20 years, “and his behaviour was known to at least three Superiors who did not attempt to stop it.” One ex-Brother gave evidence about his experience of Tralee, describing “a cold hostile culture where the boys were treated with harshness: ‘It was a secret enclosed world, run on fear’”.

That is the backdrop against which the Inquiry that launched on Monday will be serving, as it seeks to uncover the absolute truths about institutional care in Northern Ireland.

The Ryan report said that girls supervised by orders of nuns, primarily the Sisters of Mercy, suffered much less sexual abuse, but endured frequent assaults and humiliation designed to make them feel worthless.

The leader of the Roman Catholic Church in England and Wales, the Most Reverend Vincent Nichols, said those who perpetrated violence and abuse should be held to account, “no matter how long ago it happened.”

“The reformatory and industrial schools depended on rigid control by means of severe corporal punishment and the fear of such punishment,” said the report.

“The harshness of the regime was inculcated into the culture of the schools by successive generations of brothers, priests and nuns.

“It was systemic and not the result of individual breaches by persons who operated outside lawful and acceptable boundaries.

“Excesses of punishment generated the fear that the school authorities believed to be essential for the maintenance of order.”

RELATED:

Historical Institutional Abuse Inquiry members, BBC News, Jan 13, 2014.

Historical Institutional Abuse Inquiry – the background, BBC News, Jan 13, 2014.

Care home abuse inquiry to open in Northern Ireland, The Guardian, Jan 13, 2014

300 victims of child homes horror to tell their story as abuse inquiry finally opens, Belfast Telegraph, Jan 13, 2014

DOJ, Department of Education Issue Guidance on Zero Tolerance Programs

2014 January 13
Posted by ethoma

In August 2011, Attorney General Holder and the Secretary of Education, Arne Duncan, announced a new initiative called the Supportive School discipline Initiative to address the problem of “zero tolerance” policies that impose harsh punishments – such as expulsion – for relatively minor infractions. Recent studies show children punished in this manner are more likely to repeat a grade, not graduate, or become involved in the juvenile justice system. The initiative is a collaboration between the two Departments.

On January 8, 2014, the Department of Justice and Department of Education announced the jointly devised School Discipline Guidance Rollout, addressing the issue of “zero tolerance” policies in the nation’s schools.

Speaking at Frederick Douglass High School in Baltimore, Maryland, Attorney General Eric Holder explained:

As it stands, far too many students across the country are diverted from the path to success by unnecessarily harsh discipline policies and practices that exclude them from school for minor infractions. During critical years that are proven to impact a student’s later chances for success, alarming numbers of young people are suspended, expelled, or even arrested for relatively minor transgressions like school uniform violations, schoolyard fights, or showing “disrespect” by laughing in class.

Too often, so-called “zero-tolerance” policies – however well-intentioned – make students feel unwelcome in their own schools. They disrupt the learning process. And they can have significant and lasting negative effects on the long-term well-being of our young people – increasing their likelihood of future contact with juvenile and criminal justice systems.

The guidance came about as the result of “close and longstanding cooperation between the Departments of Justice and Education, as well as extensive research and collaboration with school leaders, educators, and parents,” Holder added.

The guidance is intended to assist school districts, public elementary and secondary school teachers, as well as administrators “in meeting their obligations under federal law to develop and implement disciplinary policies without discrimination.”

Holder explained that the guidance will “provide useful information for school resource officers, recommendations for evidence-based alternatives to exclusionary discipline, and fresh approaches for monitoring and addressing racial and other disparities. Even more critically, it will offer new tools for educators, policymakers, and parents to promote fair and effective practices that make schools not only safer, but more supportive and inclusive.”

Seeking to avoid potential liability, schools have been hiding behind a wall of resource officers, police, and privatized security guards, explains a Dear Colleague letter sent to school officials around the nation. This does not provide the schools with the legal insulation that they desire. To the contrary: “Schools cannot divest themselves of responsibility for the nondiscriminatory administration of school safety measures and student discipline by relying on school resource officers, school district police officers, contract or private security companies, security guards or other contractors, or law enforcement personnel. To the contrary, the Departments may hold schools accountable for discriminatory actions taken by such parties.”

It is gratifying to see leadership at the federal level beginning to take a serious interest in matters that greatly impact on youths. Far too many have been turned into “offenders” for trivial offenses that at one time may have merited little more than a minor reprimand.

The “school-to-prison pipeline,” as it has been called, is tantamount to a black hole that sucks the very lifeblood out of children, their families, and their communities.

It is time that the educators begin educating, and stop acting as the sentinels for the child welfare and juvenile justice systems. Our schools continue to do too little of the former, and too much of the latter.


For a literature review and more information about rthe school-to-prison pipeline, see Zero Tolerance Programs at liftingtheveil.org.

Arizona: 6,000 Uninvestigated CPS Cases, and the RevMax Project

2014 January 9
Posted by ethoma

i

INTRODUCTION:
ALICE IN WONDERLAND

Fifty one years ago, an Arizona legislative committee produced an 86-page report on the Arizona Department of Public Welfare, harshly criticizing legislators. The report noted the disjointed service delivery, a chronic lack of funding. and employee mutinies that threatened the well-being of the children and families under state care.

Chaos was engulfing the state’s child-welfare system, as population increases and declining family values were pushing caseworkers to the breaking point. Even with substantial budget increases, it would be difficult to get ahead of the problems.

“Like Alice in Wonderland, we will have to run twice as fast just to stay in the same place,” the committee warned.

That report was issued in 1962, and little has changed since.

In January of 1995, The Arizona Republic published the results of its three-month-long investigation into the State’s child welfare system, reporting that: “Arizona’s child-welfare system, now under the umbrella of the mammoth Arizona Department of Economic Security, is still in chaos.”

As staff writers Carol Sowers, Norm Parish and Richard Robertson summarized the key findings of their investigation:

  • Forty-six percent of Arizona’s foster children – almost the maximum allowed by law – remain in “temporary” homes for two years or more, according to a fact sheet prepared by state
    child-welfare officials. They idle in the system until they are too old to be adopted. The result is increased costs for taxpayers and mounting caseloads for the state’s Child Protective Services agency and the courts.
  • The state suffered a net loss of 50 foster families a month from September to March, forcing cast-off children to be placed in day-care centers or held longer than necessary in hospitals.
  • On the front lines of the child-welfare system, caseworkers bail out at an alarming rate. In Maricopa County, which has the most demanding child-welfare problems, nearly one-fourth of the caseworkers left in 1993, 2 1/2 times the average for the entire DES.
  • The seasoned managers, caseworkers, and volunteers who do stay are routinely forced to subvert the bureaucracy in order to serve their clients. Faced with shortages of foster homes, caseworkers have been forced to place some children in day-care systems. But because state law prevents leaving foster children in day care for more than 24 hours at a time, caseworkers must pick them up and drive them around for an hour before bringing them back.
  • The state Department of Economic Security, the parent agency of the CPS, has had 16 director changes in 22 years, causing a crisis of consistency in leadership.
  • Even conservative lawmakers agree that the DES has been dangerously underfunded, yet legislative commitment to children has been so marginal that the committee that oversees child welfare failed to meet for nearly two years.
  • The DES has an outdated and inefficient record-keeping system. Officials don’t know how many caseworkers they need to handle the increasing number of abused and neglected children coming into the system, and it recently took a researcher an entire week to find out how much money is being spent on children.
  • The DES has been so financially mismanaged that it went 20 years before the state auditor general could certify that the agency is keeping track of the $2.5 billion in funds and benefits it manages. The agency’s financial picture is so muddy that it didn’t even know it until several months ago that it had $14 million to use to help people find jobs.

John Hagedorn, who tried valiantly to reform Milwaukee’s troubled child welfare system, describes the transformation of a once-helping institution into one that in later years saw most federal social service dollars “going to create an expensive, punitively-inclined child protection apparatus which was to take over Departments of Social Services.” Social service bureaucracies grew and sustained themselves by adapting to the ideology of child protection “which in effect meant investigating child abuse and placing kids out of their homes,” Hagedorn explains.

Arizona’s child welfare bureaucracy provides a textbook perfect illustration of this phenomenon.

According to Marsha Porter, a former CPS director, part of the problem is that children and families too often don’t get help until it is too late, the Arizona Republic explained.

“There is only one child-welfare agency in the state, and its main function is investigation. The problem is that the only way for kids and parents to get services then is for someone to be labeled a victim and someone a perpetrator,” said Porter.

The retention of foster parents has always been an issue in child welfare, due in no small measure to those foster parents who would dare to advocate for the children in their care being pushed out of the system.

“Good foster parents are outspoken about incompetence and negligence, so they get threatened by the licensing agencies. DES likes to put kids in places that aren’t problems,” Francis Beseden, an attorney and legal guardian, told the Arizona Republic news team.

The bureaucratization and debureaucratization of child welfare service agencies are often pointed to as part of the magic key to reform. Agencies have been sub-divided, decompartmentalized, recompartmentalized, and pulled back together once and again “under one umbrella” in a never-ending effort to find the proper bureaucratic balance.1

Arizona provides no acception to the rule, its current Department of Economic Security having been assembled in 1972 by combining several departments in order to eliminate what the industry commonly describes as the “fragmentation of service delivery.”2

In 1995, when these problems were investigated and identified by Arizona’s press, the child welfare bureaucracy had already grown to tremendous proportions, as the journalists explained:

If the DES were a corporation, its 8,800 employees would make it the third-largest in the state – smaller than Motorola and Allied-Signal but larger than Honeywell, Arizona Public Service and America West Airlines.

On October 7, 2011, Arizona Governor Jan Brewer signed Executive Order 2011-06 establishing the Arizona Child Safety Task Force.

“Child Protective Services caseworkers and staff perform critically important and exceptionally difficult work, and their margin for error is thin,” said Governor Brewer in a press release. “So I commend DES Director Clarence Carter for identifying immediate reforms that can help the agency perform more efficiently and effectively.”

In a subsequent release issued on November 1, 2011, the Governor announced the members of the Task Force, which included a diverse array of professionals with claimed expertise in the field of child welfare. The recommendations of her Task Force were to be in addition to a series of immediate reforms the Arizona Department of Economic Security intended to “improve its operations, transparency and accountability when it comes to the safety and welfare of children under the state’s oversight.”3

The Governor took the unusual course of appointing Clarence Carter – head of the Department of Economic Security – and Gregory McKay, an outspoken Phoenix police detective who had expressed criticism of the Department’s operations, as co-chairs on the Task Force.

NOVEMBER 12, 2013

The catalyst for Gov. Brewer’s push to investigate all reports called in to the Arizona CPS hotline, regardless of whether or not they necessarily merit investigation, is said to be a confidential memo sent to her by Gregory McKay, the Phoenix police detective overseeing criminal investigations at CPS, dated November 12, 2013. The memo from McKay concerns his discovery of thousands of uninvestigated child abuse and neglect reports, saying the issue is “clearly one of failed child safety and protection multiplied by 5,000.”

Department of Economic Security Director Clarence Carter said the chief of the Office of Child Welfare Investigations brought the issue to his attention on Nov. 12, the same date as that on the memo to the Governor.

Carter said 6,000 cases were “misclassified” as not requiring investigations beginning in 2009. The number of cases escalated as the caseloads increased, and even as a new hotline process was being put into place. “What is clear to me here is that determination was made in many instances where it never should have been made,” Carter said.

The end result of the univestigated cases bears repeating.

“I don’t know of any fatalities,” said Gregory McKay, according to an AP report of November 21, on the uninvestigated cases.

“No deaths have been connected to the lapses,” the AP reported in a subsequent article published on November 25.

On December 3, in its coverage of the events the Payson Roundup similarly reported that “the review has so far uncovered no deaths.”

Depending on which news report one may read, the number of univestigated cases was, at a minimum, 6,000, with other reports putting the figure at 6,100 to as many as 6,500. The actual number isn’t as important as this one: Among the entire cohort of uninvestigated cases, there was not one child fatality to be found.

A CLOSER LOOK

According to a report released in August of 2013, the Department of Economic Security received 32,300 calls over the course of the six-month period. Of the total calls received, 10,139 (31.4 percent) did not meet the statutory criteria for a CPS report. The report continues on the explain that:

Calls that did not meet the criteria for a CPS report included: requests for information or referrals for services; questions about current cases; and allegations of abuse or neglect where the alleged perpetrator was not the child’s parent, guardian or custodian.

The report continues on to note that: “Every call that does not meet the criteria for a CPS report is reviewed within 48 hours by quality assurance staff to ensure the accuracy of that decision.”

According to a CBS 5 News report, Carter said investigators had gone through nearly 3,000 cases and found 1,700 cases that needed further investigation. Of those, they found only 10 that needed immediate attention.

That is to say that only 10 out of 3,000 reports appeared to require immediate attention. That does not necessarily mean that children were genuinely endangered, as the reported severity of a report may – at least in some instances – be attributed to the ingenuity of someone deliberately calling in a false or malicious report.

In February of 1998, I interviewed a whistleblowing former caseworker from Arizona who told me that it was painfully obvious to her at at least one third of the cases that appeared on her desk for investigation were deliberately false, and that they should never have been passed on for investigation. This was particularly true of the anonymous call-ins.4

What she said echoed the writing of Keith Richards, an eight-year veteran of Long Island’s child protective services system and author of Tender Mercies: “People try to manipulate the CPS system all the time. You know, schools and hospitals calling to protect their behinds when a kid has a hangnail, neighbors harassing neighbors, estranged spouses trying to zap it to their ex.”

Richards sin’t the only former CPS caseworker to write book. Former New York City caseworker and Turning Stones author Marc Parent explains:

Once in a while, cases generated by anonymous callers proved to be true, but not usually. Reported crack houses with children locked in small crates covered in bruises and urine often turned out to be buildings with doormen and well-cared-for children tucked tightly in bed. The toll of the false reports was exhausting. It was sickening to to visit families in the middle of the night, make parents wait outside, wake up children and strip them naked to look for bruises that were never there.

“More often than not,” he adds, “victims of false reports turned out to be people in the midst of completely unrelated feuds with a neighbor or two. Strange coincidence.”

THE NEW TEAM

On December 12, 2013, the AP reported that a “new team” dubbed “CARE” by Governor Brewer reported that over 550 reports from the past four years had now received responses, and nearly 200 children had been visited by police or social workers.

You read that right. Some of these cases were over four years old, and the police and the caseworkers were only now knocking on the doors.

But should they have been knocking at all?

On December 19, the AP reported that: “A new team assigned to review more than 6,500 child abuse and neglect reports that weren’t investigated by Arizona child welfare officials says they’ve now assigned more than 2,100 of those cases to investigators.” The so-called CARE team, as it was named by Gov. Jan Brewer, said that over 1,100 children identified in the reports had been seen, and more than 1,000 cases have had a response.”

Progress was being made. But where was it all leading? Were there children out there truly needing to be rescued? Were there any lives to be saved?

On January 3rd of this year, the Arizona Capitol Times reported that: “The team assigned to check on the safety of children associated with abuse calls that went without investigation has found no ‘significant’ cases after seeing more than 2,000 children in the first month of work.”

With one third of the cohort of uninvestigated cases now behind them, the team found no child fatalities whatsoever, and no “significant” cases.

In other words, the screeners at the hotline had it right. They had engaged in the necessary and appropriate triaging of reports. Yet it was precisely that action – the triaging of reports – that had brought the agency under fire.

A RAND study published in 1991 – long before the deluge of reports had attained its current proportions – explains that “CPS systems contend with chronic overload by establishing formal triage systems or, where acknowledgement of limited capacity is not permitted, de facto triage.”5

As the Urban Institute explains in its report The Decision to Investigate: Understanding State Child Welfare Screening Policies and Practices, many state agencies reported that “they had recently tightened the criteria by which they judge whether a referral should be investigated. While only one state — Connecticut — reported that its official state policy changed to exclude certain types of reports from investigation, many states reported unofficial changes in practice that produced the same result.”

By the late 1990s, the ever-increasing number of reports to CPS became a major issue of concern in the industry. The Spring 1998 edition of Future of Children featured an article that examined the problem in some detail, concluding:

State legislatures should allow, and local agencies should undertake, experiments with screening systems that differentiate between reports of maltreatment representing higher or lower risk to the child, and that build in evaluations tracking outcomes for both groups. Differentiation should guide the manner in which further information about the report is gathered, and help to prioritize cases for services and CPS oversight.

POLITICAL POSTURING

Writing in the September 2013 issue of Journal of Sociology & Social Welfare, Keith Roberts Johnson explains that: “Triage works to adjust the classification decisions to the resources available.” Johnson further explains that:

Outside political forces are reactive and counterproductive, pushing the profession towards punitive actions towards families. Worst of all, there is no solution possible when this perspective is adopted, other than a never ending demand for more social workers, more resources for families, more training, more skills and more supervision.

Arizona’s politicians are no exception to this rule, as evinced by the harsh rhetoric surrounding the “discovery” of the uninvestigated cases at CPS. Some headlines around the time included: AZ leader looks into failures at CPS, AZ finds problems in more CPS cases, Community forum held to help fix CPS, and 5 AZ CPS staffers placed on leave.

Even worse, Channel 12 NBC News reported the 6,000 uninvestigated cases as a “horrible, horrible reality coming to light.”

The problem in Arizona is one of knee-jerk statutory construction born of an overreaction during a previous administration. Arizona statute 8-802.C.5 mandates that all reports of alleged abuse or neglect called in to the hotlines are to be investigated. As much as Arizona’s legislators may hate to hear it, their state is one in which, as the RAND study put it, “where acknowledgement of limited capacity is not permitted,” hence its agency engaged in “de facto triage.”6

How did this all come about? Emily Bregel of the Arizona Daily Star explains in a recent column that:

A similar scenario played out in 2003 after a series of child maltreatment deaths involving families already involved with CPS. Then-Gov. Janet Napolitano pushed through extra funding for CPS, as well as legislation mandating that all cases get investigated. The reforms also dismantled the state’s “differential response” program, a kind of triage system that refers low-risk families to voluntary support programs instead of a CPS investigation and dependency court.

THE REVMAX PROJECT

Brewer inherited far more than that particular legal mandate from prior administrations. An audit note by the state’s Auditor General dated December 1, 2005, and addressed to then-Governor Janet Napolitano, detailed a revenue maximization initiative that the Department of Economic Security had commenced some time earlier.

These financial considerations, while complicated, must be understood if any efforts are to be made to implement reforms of a meaningful nature. It is one thing to claim that federal dollars impact placement decisions and length of stay, but it is quite another matter to prove it.

The audit explains: “The Department is working to increase federal revenues and has engaged a consultant to implement three projects involving federal grants used to fund Child Protective Services operations. These projects are designed to replace state funds with increased federal revenues and are expected to bring in approximately $3 million in one-time revenues and $1.3 million annually in ongoing new revenues. As of October 2005, $2.1 million of these funds had been received.”

In outlining these events for the benefit of the Governor, the audit note continued on to explain:

In the fall of 2003, the State began developing an initiative that is designed to help state agencies identify and recover currently untapped sources of revenue for which they may be eligible. This initiative, known as Revenue Maximization (or RevMax), is a state-wide initiative and has a governance board that reviews and monitors the progress of agencies’ projects. As of September 2005, 23 projects are under operation or have been completed among eight state agencies, including three projects at the Department of Economic Security.

To implement this initiative, in June 2004 the State contracted with six vendors who have specialized “revenue maximization” skills and experience with other states. These contractors are paid a fixed fee or a contingency fee of up to 10 percent of new revenues earned or costs avoided over a set period of time based on a preestablished baseline. While federal matching funds may be used to pay fixed fee contracts, contingency fees cannot be paid with federal funds, but may be paid with state funds replaced by the newly generated revenues.

The audit explained that “management may solicit offers from any of the six approved contractors or may elect to work on the project internally without contractor assistance. If the project results in new revenues or cost savings, the agency’s program budget may be reduced to return some newly generated revenues to the General Fund. The agency can then use the remaining funds to update information technology, to enhance prevention and early intervention strategies, to offset agency supplemental requests or unfunded mandated costs, or to compensate personnel who were principally responsible for generating the savings. Allowable RevMax projects include: Obtaining new revenues, such as replacing state funding with federal funding for past or prospective program expenditures; Providing funding flexibility, such as expanding the allowed use of federal revenues; and Avoiding costs, such as reducing expenditures in current programs.”

The audit note details a contractual relationship the agency had established with Public Consulting Group for the express purposes of enhancing federal reimbursements for children in foster care under Title IV-E. Public Consulting Group estimated that “that the project would generate $1.2 to $2.1 million in one-time increased revenues.”

Toward this end, PCG “received data on approximately 20,000 foster care placements from April 2003 through June 2005 and identified approximately 1,000 children with a potential for recovery of Title IV-E funds. PCG then reviewed Child Protective Services records for these 1,000 children to determine if they were eligible for federal funding and to assemble the required paperwork to document the child’s eligibility.”

It is interesting to note that an agency that has historically been reluctant to provide information regarding children in its care on the basis of confidentiality concerns, has no compunction about handing over the names and complete case files – which often include detailed family income histories – of thousands of children over to a private contractor for analysis.

The audit continues on in this vein for many more pages, detailing the Department’s efforts to pull down as many federal dollars as it can for its child protection and foster care programs. This was the golden era of revenue maximization, and the state of Arizona was gearing up to fill its agencies coffers with all of that expertly generated federal revenue.

The audit details some of the earlier accomplishments, and they are particularly relevant in terms of determining what a child in care is actually “worth” to the state. These are drawn verbatim from the report:

  • The Department reports that, as of July 2005, PCG had identified an additional 139 children from the review period who were eligible for $2,010,900 in Title IV-E payments. The Department has submitted this claim to the federal government and it was approved and paid in October 2005.
  • The Department indicates that it submitted another claim totaling $711,439 for 99 children found to be eligible under the Title IV-E program. This claim was submitted to the federal government on September 30, 2005. The Department expects to receive notice of acceptance or denial by December 31, 2005
  • Further, the Department reports that on October 31, 2005, it submitted a claim requesting $73,523 for allowable administrative costs associated with the children identified through this case file review project.
  • PCG estimates that it will identify additional children who were Title IV-E eligible, and the associated claims will total at least $150,000.

That’s right – the administrative costs associated with generating the federal revenue are themselves reimbursable. And, all the contractor gets is a relatively small percentage of the gain on a fee-contingent basis. Everybody wins, save the children who want only to return to their homes.

There is another specific financial incentive to maintain a CPS case as an “open” one: “PCG indicates that CPS activities provided to children not removed from their home, such as eligibility determination, case management and planning and certain in-home services, may be eligible for Title IV-E administrative reimbursement if CPS determines that, absent effective preventive services, the children in question would be placed into foster care.” Hence, the true urgency behind the monthly family visits that never seem to end is revealed.7

FOSTER PARENT RECRUITMENT AND RETENTION

Arizona has privatized the bulk of its services involving foster care home recruitment. The belief that “outsourcing” these tasks to the private sector will make for a job well done is essentially a myth, at lease inasmuch as the privatization of services in Arizona is concerned. As a report issued by the State Auditor in October 2013 explains:

The Department contracts with licensed child-placing agencies (contractors) to provide most services related to foster home recruitment. Specifically, as of June 2013, the Department had contracts with 21 contractors who provide foster home recruitment-related services within one or more areas of the State specified in their individual contracts. According to department staff, 18 contractors serve Maricopa County, 13 contractors serve Pima County, and 6 contractors serve the other counties in the State.

How are Arizona’s private contractors doing in terms of the recruitment and retention of foster homes? An August 9, 2013, article in The Republic explains:

The one bright spot heralded in the previous report in January — a net gain in family foster homes for the first time in three years — evaporated as foster parents closed their homes faster than new ones could open during the six-month period ending March 31. While 722 new families became licensed, 740 foster homes closed their doors.

Legislative solutions are at times as confounding as they are counterproductive. In responding to the growing shortage of foster homes, Governor Brewer signed Senate Bill 1108 into law on May 2, 2013, directing the Department of Economic Security to “develop a placement policy that restricts the placement of young children and infants in homes where the foster parents have not immunizaed their own children.”

The licensing requirements for prospective foster parents are only the first hurdle to be crossed. That’s the recruitment part of the equation. As an October 2013 report by the State Auditor explains:

Statute requires the Department to license individuals who provide foster care to nonrelative children. General licensure requirements include possessing the ability to care for children; passing criminal background checks; undergoing an investigation, or “home study,” and a home safety inspection; and completing a specified number of training hours. Licenses are valid for 2 years and specify the age range, gender, and maximum number of children who can be placed in a licensee’s home. The Department reported that it had 3,576 homes maintained by licensed foster parents with a total capacity of 8,579 spaces as of March 31, 2013. Of these spaces, 2,152 spaces were unavailable for placements, and 1,051 spaces were available but unused because a match between these spaces and children’s needs was not possible.

HOW MANY CASEWORKERS WAS THAT AGAIN?

The timing of the entire affair is rather curious. Prior to the revelations concerning the backlogged cases, journalist Mary K. Reinhart reported: “The head of Arizona’s child-welfare system is requesting 444 new workers and more than $115 million to keep pace with the unabated growth in the number of abused and neglected children entering foster care and to reduce caseloads, but not for money to prevent children from coming into foster care.”

Reinhart noted also that “the Department of Economic Security’s budget request for the coming fiscal year comes as the agency is training and deploying 200 new Child Protective Services case managers and support staff that lawmakers approved last session, but anticipates growth of 7 to 8 percent in the number of kids in care — now approaching 15,000 children — over the next two years.”

Reinhart continued on to explain that:

Arizona continues to be an outlier in the country, with national statistics showing the state with by far the largest percentage increase in its foster-care population. State child-welfare officials attribute the growth to an increase in reports to a statewide hotline.

In an article published on August 9, Reinhart wrote of the deepening crisis in Arizona’s foster care system. Arizona “is caring for a record number of foster children as child-welfare workers juggle an ever-growing number of abuse and neglect reports, according to a new state report.

“The biannual report shows that the state’s Child Protective Services now has 14,314 children in foster care, an increase of 40 percent since March 2010, and continues to be buried under an avalanche of reports, most of them alleging that children are being neglected.”

Reinhart noted that a separate monthly report “shows an even higher 14,608 children in care as of June 30, including 95 babies and small children living in group homes and crisis shelters. In March 2010, there were 10,207 Arizona foster children.”

According to official sources, as of March 31, 2013, the Department of Economic Security had 14,304 children in care. 5,894 – or 41% of the total – resided in conventional foster homes. 5,715, or 40% were residing with relative. 10% resided in group homes, 5% were in residential treatment centers, with the remaining 4% in other placements.

i

AN OUNCE OF PREVENTION

In an article published on December 17, 2012, Mary Reinhart wrote a particularly insightful column that read, in part:

Arizona child-welfare administrators plan to restore most services to children and parents in the coming weeks, saying an internal “misunderstanding” led them to inadvertently cut visitation and other standard programs.

New budget-tightening policies implemented over the past couple of months threatened to keep children in foster care longer and make it harder to reunite families, and they led agencies to lay off dozens of workers. The abrupt policy changes also delayed or reduced supervised visitation, parenting training, transportation and other services, in violation of court orders.

The Department initially denied the cutbacks – even those detailed in its own internal memos – however, agency head Carter came clean after a story in the Arizona Republic detailed the cutbacks. Reinhart explains:

Carter acknowledged that a “malfunction” led middle managers to go too far in reducing services, those attending the meeting said. Some agencies hadn’t received referrals for family mentors, known as parent aides, in months.

“Unfortunately, a misunderstanding within the DES resulted in staff and providers believing that adjustments below historic norms were required,” DES administrators said in a letter to service providers and a statement sent to The Republic. “That was not DES’ intent and is not accurate.”

“What I’m hoping is that it meets the needs … so we hear less from parents saying, ‘I haven’t seen my kids in several months,’” said Ron Carpio, a vice president of a private company that runs the Families FIRST program in Maricopa County. “They have a right to see their kids.”

Let us be clear about the impact of this “misunderstanding” on the part of the Department and its contractors. As an April 12, 2012, performance audit conducted by the Auditor General’s Office explains, the “Division’s in-home services program intended to stabilize, strengthen, and preserve families,”

It is precisely these programs that were being quietly phased out by the Department of Economic Security and its revenue maximization contractors in favor of increasing the more lucrative foster care placements

This is nothing new. Some years ago, I suggested to Massachusettes News reporter Edward G. Oliver that he consider contacting State Rep. Marie Parente, Chair of the Legislative Committee on Foster Care, in reference to a series he was putting together on the topic of revenue maximization by human services agencies. Parente’s Blue Ribbon Commission on Foster Care had released a series of recommendations for systemwide reform at the time, and Anderson Consulting – a revenue maximization firm – held contracts with that State. Oliver reported that:

When asked if the recommendations for reform from the Blue Ribbon Commission were acted on, Rep. Parente answered that DSS implemented those parts of the Commission “Report” that Andersen liked which increased the federal revenue. She said, “What they did was the parts that Andersen liked, you know, the money part, the federal reimbursement. But my special committee filed a minority report because I thought they focused on the wrong thing.”

Oliver reported that Rep. Parente described to Massachusetts News the important role federal dollars play in decision-making about those children at DSS:

I remember Congresswoman Schroeder. She said her greatest fear about federal funding for DSS is that every time they decided to put more money into a different facet of DSS, then DSS focused the attention on that. It is that way across the country. If they thought that children should stay with families and that was their big thing that year, all kids stayed with their families because then the state would get a lot of money. If the focus of the federal government and funds change to adoption, then everybody would get adopted.

Around the time of the interview, Anderson Consulting was knocked out of the box by rival Public Consulting Group, which is among the firms that currently holds RevMax contracts with Arizona. And so it goes, as the current cutbacks in aid to families and the federal financial incentives rewarding states for increasing adoptions clearly demonstrate.8

DECEMBER 2013

Children are sleeping in CPS offices as caseworkers scramble to find a foster or group home placement.

The results of the increasing removals coupled with the continuing exodus of foster parents from the system are as tragic as they are predictable, as Arizona Daily Star columnist Emily Bregel explained in a December article: “Children are sleeping in CPS offices as caseworkers scramble to find a foster or group home placement. Some kids are placed hours away from their families, friends, schools and all that’s familiar.”

The alleged misunderstanding between high-ranking bureaucrats and their contractors aside, Bregel explains that: “The State funding for family preservation services – in-home programs to boost parenting skills and strengthen relationships – was halved from $43 million in 2008 to $22 million in 2012.”

During a forum organized by the Children’s Action Alliance in late 2013, participants described Arizona’s system as one in which “Court systems are unfriendly time-sinks for foster parents, CPS workers and biological parents trying to regain custody,” the Capitol Times reported.

To be sure, there was the usual rhetoric about “underpaid” and “overworked” caseworkers, but there were also some more thoughtful suggestions from the group. The lack of prevention programs has contributed to a dramatic rise in neglect reports, said Dennae Pierre, executive director of Arizona Foster Care Initiatives.

Pierre went on to say that a dollar spent on prevention can save $10 in costs down the road.

“All the dollars in the world won’t help,” Pierre said. “We’re just stuck in a crisis state.”


1. See For the Welfare of Children: Lessons Learned from Class Action Litigation, Center for the Study of Social Policy, (2012) (noting that “Little is more radical in child welfare than shifting the agency’s orientation from bureaucracy-centered to child-, youth- and family-centered”); Charles Wilson with Paul Vincent and Ed Lake, Washington State Institute for Public Policy, An Examination of Organizational Structure and Programmatic Reform in Public Child Protective Services, Report #96-12-4101, December 1996; Ira M. Cutler, The Role of Finance Reform in Comprehensive Service Initiatives, paper prepared for The Finance Project (December 1994) for an analysis of “comprehensive reform initiatives” in child welfare; John M. Hagedorn, Forsaking Our Children: Bureaucracy and Reform in the Child Welfare System, (Lakeview Press: 1995).

2. The Department of Economic Security was established in July 1972 by combining the Employment Security Commission, the State Department of Public Welfare, the Division of Vocational Rehabilitation, the State Office of Economic Opportunity, the Apprenticeship Council, and the State Office of Manpower Planning. In 1974, the State Department of Mental Retardation also was absorbed by the Department.

3. The Child Safety Task force members announced at the time included: Bill Montgomery, Maricopa County Attorney; Justice Robert Brutinel, Arizona Supreme Court; Judge Michael McVey, Maricopa County Superior Court; Clarence Carter, Director, Arizona Department of Economic Security; Steve Twist, President, Arizona Voice for Crime Victims; Dr. J. Kipp Charlton, Pediatrician, Maricopa Medical Center; Dr. Cindy Knott, Vice President, ChildHelp; Dr. Steven Anderson, Director, ASU School of Social Work; Veronica Bossack, Assistant Director, Division of Children Youth and Families, Department of Economic Security; Cassandra Larsen, Director, Governor’s Office for Children, Youth and Families; Linda Gray, Arizona State Senator; Leah Landrum-Taylor, Arizona State Senator; Eddie Farnsworth, Arizona State Representative; Terri Proud, Arizona State Representative; Dave Byers, Director, Administrative Office of the Courts; Marty Shultz, Community Leader; Anne Donahoe, State Foster Care Review Board, CASA Volunteer; Lt. Katrina Alberty, Glendale Family Advocacy Center; and Grace Bee, Foster Parent.

4. A portions of my interview is to be found in my article on caseworker training on my web site. At the time, I enjoyed the benefit of caseworkers from many states sending me unpublished audits, risk assessment instruments, evidence of departmental revenue maximization strategies, and other valuable material. The web was a much smaller place at that time.

5. The report was issued under the auspices of the U.S. Department of Health and Human Services, which by that time had come under pressure to do something about the flood of inappropriate reports to the hotlines.

6. The Arizona statute also provides that: “All child protective services workers shall be trained in their duty to protect the legal rights of children and families from the time of the initial contact through treatment. The training shall include knowledge of a child’s rights as a victim of crime. The training for child protective services workers shall also include instruction on the legal rights of parents.” Unfortunately, this section of the statute appears to be routinely disregarded.

7. For more information about this aspect of revenue maximization, see my previous entry Foster Care Candidate Revenue Maximization Schemes Line County Coffers.

6. On September 18, 2006, state Representative Marie J. Parente lost her bid for re-election after serving on Beacon Hill for more than 20 years.

8. For current information regarding federal financial incentives promoting adoptions, see Child Welfare: Structure and Funding of the Adoption Incentives Program along with Reauthorization Issues, Congressional Research Service, April 18, 2013.

 

Texas Foster Care: Long Road Toward Reform – Part I

2013 September 18
Posted by ethoma


In August of 2013, KVUE-TV reported on the tragic and utterly avoidable death of Alexandria Hill at the hands of her foster mother. “We never hurt our daughter,” the victim’s father, Joshua Hill told KVUE. “She was never sick, she was never in the hospital, and she never had any issues until she went into state care.”

By now thousands of people are aware that the young child had been taken from her parents on grounds no more compelling but that they admitted to smoking some marijuana at the end of the day, as their baby slept.

Typically, it is not until a tragic death such as this occurs that the true reasons for the child’s “removal” into “protective custody” come to light.

iLydia Alday

One such case concerns Lydi Alday. On June 16, 2007, KTRK Television ABC News reported that: “Funeral services were held Saturday morning for Lydia Alday at the Brookside Funeral Home in northwest Harris County.”

“Investigators say Alday stopped breathing while taking a nap at her foster home in Brazoria County. The toddler died a day before she and her younger brother were supposed to be given back to their family,” KTRK reported.

Why was Lydia in state care to begin with? The Houston Chronicle reported that according to a Department spokesperson: “because mom and dad were having difficult issues at home.”

Lingering Issues Remain

More Texas children dying while in foster care,” blares the headline on a recent report by ABC Eyewitness News 13.

The news has an ominously familiar ring to family advocates. “A spike in the number of Texas children dying in foster care is prompting state officials to demand a tougher screening process for foster parents,” Eyewitness News reports.

Ten foster children died under “suspicious circumstances” during the fiscal year that ended on August Aug. 31. Patrick Crimmins, of the state Department of Family and Protective Services, told The Dallas Morning News that four of the deaths had been ruled to have been the result of abuse and neglect, while the other six remain under investigation. And, two foster children died from abuse and neglect during the previous year.

Family and Protective Services Commissioner John Specia wrote a letter this month to the more than 300 private child-placing agencies and residential treatment centers in Texas, urging them to redouble their efforts to keep children safe,” the report notes.

That is just how many individual private agencies that Texas has today as a result of its “transformation” of the foster care system.

Specia’s letter followed critical media accounts of the Dallas-Fort Worth and Central Texas operations of Texas Mentor. The company recruited and hired the woman now charged with capital murder in the head-slamming death of the 2-year-old girl in her care.

The Boston-based company has two offices that manage approximately 130 foster homes in North Texas. Over the last two years, nearly 150 deficiencies were found in those homes. More than 50 of them were of high severity, such as when a visiting adult relative shared a bed with a foster child.

Texas Mentor is a part of Boston-based National Mentor Holdings Inc., a $1 billion-a-year corporation that provides health care and social services in 34 states, according to a writeup in the Christian Science Monitor.

On August 15, 2007, KTBX ran with a headline reading “CPS Sued over Child’s Death in Foster Care.”

“Relatives of a 3-year-old who died in foster care have sued Child Protective Services in federal court, claiming the agency allowed her to remain with the foster parents despite knowing she had been previously injured,” the story explained.

The lawsuit, filed in U.S. District Court, asked a jury to assess monetary damages stemming from the death of Sierra Odom.

Sierra died in 2005 after being hit on the head and suffocated at her foster parents’ Arlington home, authorities said. A jury had convicted foster father Timothy R. Warner of injury to a child in Sierra’s death.

The Privatization Push

Undeterred by several setbacks with their private contractors early on, Texas legislators rushed to fully privatize foster care services. In April 2007, the Austin-based Center for Public Policy Priorities issued a paper cautioning that:

  • At a time when we have children sleeping in state office buildings, privatization will make our foster-care capacity crisis worse;
  • Rapid privatization will force children out of their homes, move children into more crowded homes, and compromise their care;
  • At a time when we have over 4,000 children available for adoption but without an adoptive home, privatization will make our adoption capacity crisis worse;
  • Privatization cannot possibly be accomplished in 24 months; and
  • Privatization will cost far more than the state has calculated.

Texas hit something of a roadblock in August of 2012, when it was announced that Lutheran Social Services of the South had lost its bid to privatize foster care in South Texas because of what was reported as “a history of problems” at three of its operations.

Among other things, Lutheran Social Services staffers had “routinely failed to properly oversee foster homes, conduct background checks on families and protect youth from abuse and neglect,” according to a letter sent to the company by the state child protection agency.

On January 7, 2011, the Houston Chronicle reported: “State child welfare officials on Friday shut down Daystar Residential Inc., a home for troubled youth, one day after a foster child’s recent restraint death was ruled a homicide.”

“Today, we have revoked Daystar’s license to operate, effective immediately. The DFPS investigation found that this facility is just not safe for children,” said Anne Heiligenstein, commissioner of the Texas Department of Family and Protective Services.

“The closure, which can be appealed, was precipitated by the death of Michael Keith Owens, 16, whose death in November was ruled a homicide on Thursday.”

An Urgent Situation

In March 2007, the Houston Chronicle reported that the situation in Texas had turned into “an urgent one.”

Since September, the article explains, three foster care children — Christian Nieto, Katherine Frances and Andrew Burd — have died in foster homes selected by private contractors, revealing a lack of direct oversight of the companies’ placements. The Chronicle illustrated with some cases in point:

  • Last September, Christian Nieto, 16 months old, died of head injuries in a privately managed Corsicana foster home 60 miles from where the state thought he was living. His foster mother, who insists the boy already was injured when he was transferred to her care, has been charged with capital murder.
  • In October, 4-year-old Andrew Burd was pronounced dead on arrival at a Corpus Christi hospital after being forced to drink a mixture of water and Cajun seasoning. His foster parents, who were in the process of adopting him when he died, have been charged with capital murder, and DFPS halted future foster care placements through the company that approved them.
  • And in December, 6-year-old Katherine Frances was found fatally body-slammed in her Dallas-area foster home, one affiliated with a private company. The foster mother’s 14-year-old biological son was charged with murder.

CLOSE UP:
The Children

Christian Nieto

iThe Nieto family. Photo credit: Cheryl Diaz Meyer/DMN

Christian Nieto’s mother made a mistake. She tested positive on a drug screen at the hospital where she gave birth. Naturally, the results were passed on to Child Protective Services, who dutifully removed him — along with his older brother Logan — into the “safety” of the Texas foster care system.

The Dallas Morning News reported that “the state system charged with protecting children quickly lost track of Christian and his 3-year-old big brother, Logan, after entrusting them to a private foster company that had a lengthy recent history of putting children into dangerous or deadly foster homes; at least one child had died already.”

That private agency — Mesa Family Services — thereafter “shuffled Christian and Logan through five foster homes in seven months,” the paper reports.

Christian spent his final days in a foster home in Corsicana, in the home of an overburdened foster mother. On Labor Day, he died of head injuries 60 miles away from where state authorities thought he was living. Questions arose as to whether he had received his fatal injuries in the foster home, or during a previous placement.

After Christian died, the state canceled Mesa’s $7 million foster care contract. However, state officials were well aware of the problems at Mesa before the incident. According to state records, documented infractions at Mesa homes included child abuse and neglect; improper restraints; overly harsh discipline; unfit foster parents; and failure to run required background checks on other people in the homes.

Katherine Frances

iKatherine Frances

On December 12, 2006, the Associated Press reported that: “State child-welfare officials say they’ve begun reviewing foster homes after the death of a six-year-old girl in a suburban Dallas foster home.”

The article continues: “Police and the state Department of Family Protective Services are investigating the death of Katherine Frances in the DeSoto foster home. Police say she died after her foster parents’ 14-year-old son threw her to the ground at least four times on Sunday.”

The article continues on to note that: “The home was until recently overseen by Mesa Family Services. That private agency was already under scrutiny for the deaths of two young children in its homes in the past 17 months.”

“The state Department of Family and Protective Services said it’s begun launching an “unprecedented intervention effort to address the deaths in homes formerly overseen by Mesa,” the article explains.

Andrew Burd

iAndrew Burd

According to the adoption proponents of the day, Andrew Burd was right where he needed to be. He had found his “forever family” in the home of prospective adoptive parents in Corpus Christi.

Andrew perished at the age of four, the apparent victim of salt poisoning. The young boy reportedly choked and stopped breathing after he was forced to drink salt water laced with cajun spices.

Police reportedly treated his death as a homicide because his adoptive parents, Larry and Hannah Overton, waited nearly three hours before taking him to a hospital. Court documents indicated that the boy had brain hemorrhages that appeared to be a result of some type of trauma.

No one bothered to call Andrew’s biological family about the incident. His family found out about the death on TV, and called Channel 6 News to verify that it was indeed him. The boy’s father and grandmother had fought for custody of Andrew a year earlier.

Deadly Evaluations

Richard Wexler testified before Congress, saying that one prominent child saver likes to say: “Not one child ever died of a social work evaluation.” I submit that Andrew Burd died of precisely that — and that he was by no means the first to do so.

A Child Protective Services caseworker performed an evaluation on Andrew’s grandmother, Bonnie Roy, to see if she would be “fit” to take care of him, but decided that she was not. The CPS report said, “[Her] parenting practices demonstrates some positive aspects. However, she lacks understanding regarding the abilities and needs of a two-year old child. Her approach to discipline lacks basic application skills.”

“How could you take something so innocent and so pure and destroy it? That’s an unforgivable act in my mind,” said Bonnie.1

The short answer to her question is: “With a social work evaluation.” Many other children have been so destroyed.

On January 23, 2003, the Fort Worth Star-Telegram reported that: “The grieving parents of an infant girl from Dallas want state officials to explain how she died last weekend after having been in foster care since birth. Officials said 7-month-old Yessenia Rodriguez died Saturday evening at Children’s Medical Center in Dallas after being transported from a licensed foster care home in Van Zandt County.”

In April 18, 2000, the Associated Press reported through the Dallas Morning News that: “Of the 29 children who died statewide during the 2 1/2-year period, 15 lived in foster homes while 14 were in residential treatment centers, psychiatric hospitals or mental retardation group homes.”

Just as was the case with Christian Nieto, it was a hospital that made the call to Child Protective Services after Juana Olalde took her seven-week-old son Eric to the Childrens Medical Center in Dallas, where he was diagnosed with a spiral fracture of the right femur.

Contrary to state law, the CPS workers “removed Eric from the custody of his natural parents, without consent or a court order, and the State assumed sole supervision of Eric,” the United States Court of Appeals, Fifth Circuit, explained in its ruling over the subsequent lawsuit.

The court thereafter described the conditions in the foster home into which young Eric had been placed:

CPS officials placed Eric in the home of the Clauds, a foster family with a prior history of negative reports concerning child care. The Clauds’ home was frequently described by CPS case workers as “junky” and reportedly “smelled of cigarette smoke.” Anonymous callers also complained that the Clauds sent the foster children to daycare “in dirty diapers” with too few and unsterilized bottles. Moreover, in September of 1998, Mrs. Claud brought a child to CPS with a swollen jaw that was beginning to bruise. In her response to the incident, Mrs. Claud explained that the child “just woke up with it this morning.” CPS case worker Patty Zukas brought the swollen jaw incident to the attention of Purdin and another case worker. Additionally, in October of 1998, Purdin learned that Mrs. Claud placed a device on a foster child’s bedroom doorknob, which effectively locked the child in its room, in violation of licensing standards. Following an investigation of the incident, Mrs. Claud agreed to no longer use the device in her foster home.

A CPS report into the foster home concluded that “the physical condition of the home poses a danger to any child’s health or safety.” That finding automatically revoked the foster parents’ license. In his writeup on the case, journalist Thomas Korosec of the Dallas Observer wrote that

nobody will answer the next obvious question — one that threatens to tear an enormous hole in Texas’ child welfare safety net. No one will explain why the state took a child from an environment they suspected was unsafe and put him in a home they knew to be dangerous.

This is nothing new. An audit of foster homes overseen by private agencies in Texas released by the U.S. Department of Health and Human Services in 1995 revealed:

For 19 of the 43 foster homes visited, the home and/or neighborhood environment appeared to put the safety of the foster children at risk. Neighborhood homes were boarded-up and the yards were overgrown with tall grass and cluttered with debris. Some of the foster home yards were cluttered with old tractors, lawn mowers, and cars. The foster homes were also cluttered with wastepaper, clothes, and debris.

Foster children were living in three homes identified by the child placing agency as being located in high crime areas and drug environments. During our visit to one of these homes, the foster parent explained there had been a shooting behind her house the night before. For another home, the case file showed that the neighbors to the foster home were drug dealers and the foster child associated with them. No action was taken to move the children from these surroundings to a safer environment.

Far from being the only deficiencies found, the federal auditors also found that:

  • In 71 of the 78 cases, State caseworkers did not have the required contact with the foster children
  • 18 of the 48 foster home files reviewed, the child placing agency caseworkers did not contact the children in placement quarterly and did not visit the foster homes quarterly
  • 28 of the 48 foster home files reviewed, there was no record showing that a background check was performed on all adults who lived in the foster home; and
  • 40 of the 48 homes, based on file reviews, interviews and site visits, at least one fire and/or health deficiency was noted.

That is one clear manifestation of the double-standard that caseworkers hold; they see potential “risks” in the homes of natural parents, all the while believing that they have delivered children into a safe and secure haven in foster care.

While no one can deny that some children are so endangered in their homes that rescue is necessary and appropriate, as the Children’s Defense Fund observed in its landmark study of the child welfare system:

Children are also separated from their own families because someone in authority dislikes the lifestyle or child-rearing practices of a particular family. Influenced by moral beliefs, political ideologies, or child-saving fantasies, those with decision-making responsibility sometimes fail to consider the psychological consequences to a child of removal from his family.2

The Adoption Push

The number of adoptions in Texas have drastically increased since the mid-1990s, largely as a consequence of the Adoption and Safe Families Act, and the adoption bonuses doled out to the states by the federal government. As an agency self=evaluation report issued in September 2013 proudly explains:

In FY 2005, CPS undertook Operation Placing Us in Safe Homes (or Operation PUSH) to clear a backlog of adoptions by eliminating legal roadblocks and other obstacles delaying finalizing adoptions. As a result, adoptions increased 26.3 percent in FY 2005, prompting national recognition and an adoption incentive award in FY 2006 from the U.S. Department of Health and Human Services. Texas has received this award annually since 1998 when the Adoption Incentives Program began as part of the Adoption and Safe Families Act of 1997 (ASFA).

In September of 2010, the U.S. Department of Health and Human Services awarded $39 million to several states for increasing the number of children adopted from foster care. A press release announcing the winners of these coveted fiscal prizes explains:

States receive $4,000 for every child adopted beyond their best year’s total, plus a payment of $8,000 for every child age 9 and older and $4,000 for every special needs child adopted above the respective baselines.

In that particular round, Texas received $7.5 million, besting Florida’s $5.7 million, Michigan’s $3.5 million, while leaving Pennsylvania in a distant fourth place receiving a relatively meager $2.2 million adoption bonus.

In summary, the self-evaluation report explains that: “Overall, between 2002 and 2012, the number of children adopted has more than doubled.”

The Bureaucratic Pyramid

Agency policies are passed down the bureaucratic pyramid to the street-level bureaucrats who make their critical decisions in the field. That there is an agency “preference” for adoptions over reunifications is reflected throughout the agency, from the investigators who handle the “intake” function, to the pencil pushers at their desks in the revenue maximization offices, as well as to those workers who may specialize in drafting reunification plans, or in conducting home inspections of prospective adoptive parents.

As Shannon K. Dunn explains in St. Mary’s Law Journal, “the Department and its counterparts at the county level regularly oversee the creation of service plans that are unworkable and impractical, plans that serve only to make it more likely that Texas children who have been seized from their homes will be permanently separated from their natural parents.” Dunn continues on to explain:

Although one of the purposes of a service plan is to make parents aware of the steps they must take to ensure their child’s return to them, sometimes the Department decides, seemingly on a whim, that the parents’ compliance with the service plan is not enough. In these cases, the Department will seek involuntary termination of the parent-child relationship, even though the parents have done everything the Department required of them.

Caseworkers for the Department have also admitted in court proceedings that the Department occasionally seeks termination for no other reason than that the Department has “run out of time” to work with the parents and is faced with the choice of either terminating the parent-child relationship or dismissing the case. When a service plan does not meet the mandates of the Family Code, the parent has little incentive to challenge the plan; having already been subjected to the Department’s “inherently coercive” investigation, the parent knows that any showing of defiance or “uncooperativeness” may mean that their child will never return home.

Confirmation bias plays a significant role as well. Indoctrinated with anti-family zealotry on the one hand, and the pro-adoption agenda on the other, is it any wonder that caseworkers in the field are prone to identifying deficiencies in the homes of natural parents while simultaneously overlooking the most glaring of deficiencies in foster and prospective adoptive homes?


1. Andrew’s story was assembled from various on-line news sources. There have been many questions regarding the culpability of his prospective adoptive mother, and I am personally unconvinced that she intended to harm him. See e.g., Rachel Quigley, “Mother whose foster son, 4, died of salt poisoning back in court to overturn life sentence on evidence the boy poisoned himself, The Guardian, April 27, 2012; Juju Chang And Shana Druckerman, “Family Fights to Overturn Mom’s Salt Poisoning Conviction,” 20/20 ABC News. February 15, 2010. What is certain is that had the child been reunited with his family, rather than adopted out, he would likely be alive today.

2. For an analysis of the Children’s Defense Fund report in the context of a juvenile court proceeding, see the dissent of Judge Spaeth in In Re Kunkle, 265 Pa.Super. 605 , 402 A.2d 1037 (1979).

Reuters Investigation explores American Underground Market for Adopted Children

2013 September 13
Posted by ethoma

Suggested Reading

You may have seen some of the postings on Yahoo! conferences pitching adoptable children, wondering whether the messages were genuine, or whether they were only a cruel hoax. Reuters News conducted a special investigation: The Child Exchange: Inside America’s Underground Market for Adopted Children

The Reuter’s investigation is a long-overdue look at the underbelly of a poorly regulated industry. What happens to adopted children when their “forever homes” turn sour? Where do the children wind up?

THE CHILD EXCHANGE

Inga Whatcott, adopted from Russia, holds two stuffed dolls she saved from her orphanage in Russia, outside her apartment in Battle Creek, Michigan, in this May 26, 2013 photograph. REUTERS/ Rebecca Cook

Abandoned time and time again

A mother decides she adopted ‘a pig in a poke’ and sends her daughter away. Inga: ‘My parents didn’t want me. Russia didn’t want me. I didn’t want to live.’ Full Article

 


Manitoba: Mennonite Community Still Awaiting Return of Seized Children

2013 September 9
Posted by ethoma

In June of this year, police and child welfare officials raided a secluded old order Mennonite community in Manitoba, removing over 40 children from 15 families, placing them in foster care. Since then, their parents and community leaders have been in talks with Children and Family Services officials towards the end of having the children returned.

i


Between January and June of this year, child protection officials raided a Mennonite community in Manitoba, removing between 40 and 50 children from 15 families, placing them all in foster care. Since then, their parents and community leaders have been negotiating with Children and Family Services officials hoping to have the children returned.

Former Child and Family Services supervisor Henry Dueck is reportedly not happy with how the department has handled the case, telling CBC News reporters that it is unclear whether the approximately 40 children who were removed were actually in danger.

“I’ve never experienced anything like this,” he says with apparent frustration.

“I like to think they have the best interests of the children in mind, but I think their cure is worse than the disease,” he said.

I like to think they have the best interests of the children in mind, but I think their cure is worse than the disease.

Dueck — who has over 25 years of experience in child apprehensions — says that he foresees problems with the way this case was handled.

“Our concern is that the breaking of bonds, the lack of attachment, and what the consequences will be for these children down the road,” said Dueck.

Dueck and his wife Hilda are working with the families, helping them to navigate the system and to get their children back.

Hilda said language barriers and the passage of time have made the situation both emotional and difficult.

“When you see their tears, you can’t help but share their pain,” she said.

Taking too long

Paul Walsh, a lawyer representing 10 of the parents, said the process is taking too long. His clients have some of the youngest children among those seized, and only one of his 10 clients is actually facing charges. He says the children should be returned home immediately.

“It’s a question of time. It’s outrageous that this much time has been taken,” said Walsh in an August 15 CBC report.

But far more time would pass before the children would be returned — that is if indeed they will be.

Unanswered questions

“What CFS won’t explain is why 11 people who have not been charged also had their children taken away,” said CBC reporter Cameron MacIntosh.

An earlier CBC News account of the case reported that among the children taken was a nursing infant. Randy Fehr, a pastor whose parishioners knew some of the families involved in the arrests, told CBC reporter Jill Coubrough that there has been “a lot of heartache for the mom to not know where her little child was going.”

The charges of abuse that were laid against four members of the community are alleged to have occured between July 2011 and January of this year. Why — if the situation was so dire as to require the removal of so many children — were many left in harm’s way for five months of time? (Some children, though it is not clear how many, had been removed in January).

September hearing

After a court hearing concerning the case in early September, Paul Welsh — attorney for some of the Mennonite families — said he still believes that the process has taken too long. All of his clients have agreed to conditions laid out by CFS officials, yet the children’s return date had yet to be set.

The conditions were listed in a letter sent to the Mennonite community by Child and Family Services in July. The conditions for the return of the children include:

  • Only spanking children on their buttocks with their hands.
  • Not to leave marks or injuries on the children from disciplining them.
  • Having children disciplined only by their parents, not by teachers or pastors.

i

While old order Mennonites typically shy away from technology and the press, some of the families were not in the least reluctant to air their frustrations to a wider audience, speaking with CBC reporters outside the courthouse after the hearing.

Little has been said of the judge inside of the courtroom whose actions have served to sanctify the mass removals of the children. That judge holds the key to their return. With the RMCP at their beck and call, and the with a judge acting to cleanse the agency’s actions, an isolated community can only hope and pray that its children will be returned, and that they will be returned as undamaged children.

Without doubt, the psychological torment that the children and their families have endured will leave everlasting scars on each and every one of them.

This much is certain. Manitoba has been in a feeding frenzy for marketable children. The drama that played out in this community has become so commonplace among aboriginal communities that it is no longer newsworthy. Let us hope that the light of public scrutiny shines brightly enough to bring these few children back home.


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