Justina Pelletier Case Opens Window On Broken System

The world has watched as the Massachusetts child protection system unleashed its all of its powers against a teen-aged girl by the name of Justina Pelletier in the name of protecting her. For well in excess of a year, the public has watched her steady deterioration as she remained in state care. While promises have been extended to reunify her with her family, she remains in a state-contracted residential facility in which she asserts that she has been abused by staffers, and to the extent of being accosted even as she showered. A minority of skeptics whose agenda remains unclear have challenged her claims. Given the realities of foster care, how likely are her accusations to be true? The answer may surprise you.

INTRODUCTION

Children’s Rights, Inc. – an advocacy group that has filed several lawsuits against states on behalf of foster children – filed one such suit against the state of Massachusetts. In its highly detailed civil complaint, the organization described the plight endured by one of the plaintiffs – a young boy named Adam:

When Adam was 13, DCF moved him from the residential treatment program to a foster home. Adam quickly deteriorated in the home, and the foster parents told DCF that they could not handle him.

DCF’s next placement for Adam was another residential treatment program. This residential treatment program was primarily designated for youth sex offenders, making it completely inappropriate for Adam, who had never exhibited such behavior.

Shortly after this placement, Adam was brutally beaten by a group of teenagers in the program. Adam sustained serious physical injuries, which required hospitalization.

DCF investigated the incident and concluded that Adam had been the victim of a “fight club” orchestrated by a staff member at the facility. The staff member was later convicted of charges arising from the incident. The facility was subsequently closed, though it is unclear whether the events surrounding Adam in any way informed that decision.

Sadly, there is more to Adam’s tragic story, as the civil complaint explains: “During his hospitalization, Adam reported that he had also been repeatedly raped by another boy in the program. Adam said that, when he cried for help, staff would turn up the volume of the television over his pleas. DCF investigated Adam’s reports and concluded that there was no wrongdoing on the part of facility staff.”

By no means is Adam’s ordeal unusual. The National Council on Disability – an organization that vigorously advocates for the deinstitutionalization of children with disabilities – explains in its report Deinstitutionalization: Unfinished Business that:

instances of abuse continue to occur in institutions across the country. For example, the 2009 Texas “fight club” incident – in which institution workers forced residents to fight one another while employees taped the fights on their cell phones—made national news. In 2007 the Atlanta Journal-Constitution published an exposé of state mental health hospitals that revealed more than 100 suspicious patient deaths during the previous five years. The 2002 death of Brian Kent at Kiley Center in Waukegan, Illinois, revealed a pattern of neglect caused by unprofessional attitudes, administrative indifference, lack of competence, and caregiver fatigue.

Consider the Texas “fight club” incident described by the National Council on Disability in light of this recent account from New York. Newsday reports that four group home workers are currently facing charges of having provoked two developmentally disabled men under their care to fight, “a spectacle that prosecutors said was organized and watched purely for sport.” As reporters Nicole Fuller and Zachary R. Dowdy explain it:

When the two residents of Independent Group Home Living Program exchanged blows last fall, one overturned the other as he sat in his wheelchair, all the while, prosecutors said, the workers erupted in “raucous laughter.”

Jacqueline Kagan, a deputy special prosecutor for the state’s Justice Center, said the defendants staged “what can only be described as a developmentally disabled fight club.”

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Mugshots of three staffers alleged to have been involved in the Long Island group home incident.

According to prosecutors, the incident was video recorded on one worker’s cell phone. Independent Group Home Living Program, described as “a nonprofit agency that runs several programs on Long Island dedicated to enriching the lives of people with developmental disabilities,” issued a statement saying: “Our agency is outraged and offended by these alleged acts. . . Staff who were accused of being involved were terminated.”

Passing an intelligence test is hardy a prerequisite for the position of group home or institutional staffer, if a case from Arizona is any indication. One staffer was not only stupid enough to abuse his clients, and stupid enough to record the abuse on his cellphone camera. He was so phenomenally stupid as to to give the camera bearing the incriminating evidence away!

Reporter Heather Gross of the Arizona Republic reported on a case in which a “former group home caretaker was arrested on suspicion of filming the abuse of a developmentally delayed adult, police reported in initial appearance documents.”

Brian Conley was arrested on suspicion of abusing a vulnerable adult “after police obtained a series of cellphone videos that captured the physical abuse of a member of the group home where Conley worked,” Gross explained. The videos spanned several months of time.

“The cellphone used to film the incidents formerly belonged to Brian Conley, but was sold to a coworker. The coworker’s girlfriend found the videos and contacted Adult Protective Services,” the report explained.

The videos depicted another client of the group home, who is also a vulnerable adult, and a coworker of Conley’s physically abusing the man. One video shows the man naked in a shower. Later in the video, Conley tells another client that he “has permission to do whatever he wants to the victim,” according to the report. The other client is shown punching the man in the chest.

“Another video shows the coworker pouring a large amount of hot sauce into the victim’s mouth, while he and Conley laugh,” the Republic reported. The group home is owned by Tungland Corporation, which operates more than 110 group homes in Arizona, Nevada and New Mexico. Time will tell when another one of its staffers sells his telephone.

Returning to New York, the Poughkeepsie Journal explains that, “The mother of a 27-year-old disabled woman has sued the McChesney House director and three other state employees, alleging her daughter was raped at the upstate New York group home and the staff failed to protect her.”

The article continues on to explain that, “The federal lawsuit, filed this week, alleges the McChesney House director, assistant director, treatment team leader and night staff assistant ignored the disabled woman’s complaints that a male resident molested her in her bedroom on repeated nights in April 2012 before the suit says he raped her.”

New York has no shortage of such horror stories. From Syracuse, James T. Mulder reports: “The arrest of licensed practical nurse Tanya Lemon, 35, of Syracuse, by the NYS Justice Center for the Protection of People with Special Needs was the second arrest in Central New York for the agency that began operations on June 30, 2013. Its first arrest here in October involved a former counselor at a Camillus group home who pleaded guilty in December to sexually abusing a 16-year-old female resident.”

The New York State Justice Center for the Protection of People with Special Needs maintains a listing of press releases involving such cases. Some recent representative examples of these would include: “St. Colman’s Home Childcare Worker Admits Endangering Youth with Disabilities in Plea Deal with Justice Center,” “Nurse Charged after Person with Developmental Disabilities in Her Care Later Dies,” “Biondi School Teacher and Aide Arrested for Allegedly Abusing Student, and “Two Finger Lakes Residential Center Staff Members Arrested.”

Barely two days ago, the Lexington News-Leader reported that: “A state agency released a scathing report last week detailing ongoing problems involving bed bugs, poor living conditions and other problems at a troubled group home for disabled men in Lexington.”

The Protection and Advocacy report “also questions whether the state Cabinet for Health and Family Services properly investigated abuse at the mostly unlicensed and unregulated home,” the paper reports. Reporter Beth Musgrave explains:

Protection and Advocacy, an independent state agency that protects and promotes the rights of people with disabilities, first began interviewing residents at Messner Home in August 2011 as part of a larger project to monitor Social Security benefits for people with disabilities.

The agency found substandard living conditions and discovered that most of the campus had no oversight, even though people with serious mental illness and varying abilities lived together in a congregate setting. Some of the men there were on the sex offender registry.

This is nothing new. Musgrave notes that in 1996, the state took the home to court after an investigation found “filthy mattresses, insect infestation, soiled rooms and physical plant deterioration.”

From New Orleans, The Times-Picayune reports that authorities arrested a caretaker from a group home, accussing her of beating a mentally impaired resident with a metal cooking spoon. The resident suffered three gashes, two of which had to be closed with staples, according to a spokesman for the Kenner Police Department.

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Sharon Vaughn, charged with battery and cruelty to the infirm.

Sharon Vaughn and a co-worker were serving lunch to the residents at the facility, which provides a community-living environment for people with developmental disabilities. The victim, a 24-year-old man with autism and other mental disabilities, wanted more food. Vaughn responded by taking a 12-inch cooking spoon and whacking the victim on the head several times, according to police.

“A family member who made a surprise visit that day found the bleeding victim sitting untreated in his room,” reporter Michelle Hunter explained.

The arrest report notes that the victim’s injuries seem to have been reported only because of the family member’s unannounced visit. “Had it not been for the intervention of the family member, it is doubtful the victim would have received any medical treatment,” the report said.

A metal spoon wasn’t what Theressa Ann Johnson used in Indiana to beat her young ward. “A worker at a Muncie group home faces battery charges after police say she chased a resident and beat him with a croquet mallet,” the Orlando Sentinel reported.

According to a report from the Muncie Police Department, a neighbor of the group home called to report that she saw a staff member actually chasing after the 22-year-old resident with the mallet.

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Former staffer Lance Anglin

Also from Indiana, the South Bend Tribune reports: “St. Joseph County prosecutors have filed charges against a former employee of a group home who is accused of sexually abusing a mentally disabled man who was living at the home.”

During an interview, staffer Lance Anglin “initially denied the allegation, but later admitted he told the man how to perform the sex act, as he wouldn’t have known what to do otherwise.”

Bill Cochrane, executive director of Mosaic in Northern Indiana, said “We are all betrayed by this.”

“We are incredibly saddened.”

From Luzerne Coutny, Pennsylvania – home to the infamous “Kids for Cash” scandal – comes a news report from The Citizens’ Voice. The case concerns a staff member of a group home being “charged with sexual assault after allegedly having sex at his apartment with a 14-year-old girl from the home,” according to staff writer James Halpin.

Court records say that Synder knew the girl from his job at the Community Residential Rehabilitation Group Home, “where he was responsible for planning and supervising children, including their work, recreation, study and community service activities.”

Following the charges came the obligatory apology from the operator of the facility: “We are aware of the charges against him and are working with the appropriate officials involved in investigating this case,” said Mike Hopkins, president and chief executive of the Children’s Service Center of Wyoming Valley.

To be sure, it may very well be a false accusation. Care workers are as susceptible to them as is anyone else. Consider, however, that according to the Citizen’s Voice, officials found in the young girl’s room a journal describing her encounters with Snyder, and an iPod that contained “an abundant amount of text messaging communication between the two,” according to the affidavit filed by Hanover Township police.

According to a subsequent article in Pennsylvania’s Times Leader, Snyder pleaded guilty to the charges last December.

From Oregon: “A 27-year-old Beaverton man was arrested Friday on suspicion of sexually assaulting a developmentally disabled woman in January while he worked at the Aloha group home where she was a resident.” The Hillsboro Argus reported that Washington County Sheriff’s Office deputies began their investigation after an investigator took a rape report from one of the residents, a 22-year-old low functioning female.

Apparently, just being driven back and forth from a group home by a social worker can have its own hazards. 11Alive WXIA news of Georgia reported in December of last year that:

A woman who is a social worker with DFCS bonded out of jail Sunday after being arrested a day earlier.

Jonesboro Police suspect Ericka Thompson was driving under the influence of cocaine and marijuana.

At the time, police say, she was transporting an adult with mental disabilities to an area group home.

From Arizona, comes an article explaining that, “A counselor at a group home is facing charges of aggravated assault after two of his young charges were injured in a car wreck. Police believe the man was impaired by drugs at the time of the crash.”

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From Texas, the Star-Telegram reported in August of last year that: “An employee of an Arlington group home has been arrested in the death of a 29-year-old disabled man who was found dead last month on a hot afternoon in a back seat of a vehicle used by the home.”

The body of Terrance Sanders, 29, who was mentally challenged and physically impaired, was found in a Honda CRV used by the group home in which he resided. The driver of the car apparently forgot that he was still in it.

Investigators found the reading in the Honda was 113.9 degrees, and Sanders’ body temperature was 110.5, according to the arrest affidavit. Investigators observed “smudge and smear marks on the inside of the back driver’s side door window,” which “indicated the victim attempted to get out or in his own way alert someone or anyone that he was left inside the vehicle,” according to the affidavit.

The owners of Cherry Tree Residential Services, which ran the home, could not be reached for comment, so we’ll have to do without the obligatory soundbites of contrition that typically accompany such reports.

A sweltering car is not the only place to be forgotten by a staffer. “On the night Gerald Hyska slipped underwater and drowned in a bathtub at a state-run group home, the supervisor entrusted to care for the severely disabled man ‘forgot him’ while spending six minutes on the phone with her son, according to a felony criminal complaint,” the Star Tribune reported in September 2011. The incident occurred in Minnesota, and the victim was described in an Associated Press report as being a blind, quadriplegic man.

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From California, the Davis Enterprise reports “Davis police confirmed Saturday the arrest of a third youth on rape charges in its FamiliesFirst investigation, a day after the state Department of Social Services released documents showing the Davis group home was the source of numerous complaints and other troubles over the past two years.”

The arrest came even as the state released reports “detailing investigations into multiple complaints of improper supervision, incident reporting violations and use of unnecessary restraints – including one incident in which a child reportedly suffered broken bones.”

From Delaware: “A health-care worker was charged after a group home resident in his care suffered a broken neck that left him quadriplegic,” the News Journal reported just a few short weeks ago.

The state’s Division of Long Term Care Residents Protection referred the case the the Attorney General’s office for further investigation. According to an announcement on the Delaware Department of Justice, Attorney General’s Website, that case involved one of two healthcare workers arrested on abuse charges in unrelated cases, in unrelated facilities, during the beginning of this year.

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Stephanie Jones, assistant manager at the East Hartford group home when alleged abuse occurred.

From Connecticut, NBC News reported last year that a third former employee was “facing criminal charges for abusing residents at an East Hartford group home.”

Stephanie Jones was working as an assistant manager at the group home when the abuse took place, police said. According to the NBC News report, court documents showed that co-defendant Angelica Rivera, “was caught on tape abusing a resident and was arrested last July,” and she reportedly told police that Jones was “the main leader and the worst person responsible for assaulting the residents.” The report continues on to explain:

  • Rivera told police she saw Jones grab one resident’s private parts and also rub his legs until his hair fell out while wearing gloves, the warrant states.
  • She also reported seeing Jones poke the man’s bare feet with tacks and tie him to his bed and chair for long periods of time, according to the warrant.
  • The warrant says Rivera told police she saw Jones drag another resident by her hair and punch her in the face.

It isn’t always the residents of such facilities who are violated. Sometimes it’s the other employees. From San Andreas, The Record reported on a case in which an employee of the Rite of Passage school and group home was arrested on a disorderly conduct charge “after a co-worker discovered that he had been secretly videotaping female staffers as they took showers, according to the Calaveras County Sheriff’s Department.” The article explained:

The Sheriff’s Department said the secret video recording came to light after a female co-worker decided to make use of Estabrooks dorm room while he was away from work. She put what she thought was a movie cassette into a VCR and instead saw images of a number of female co-workers undressing, stepping into and then out of the shower.

Investigators said they have identified eight different women in the videos. They say they believe the taping took place over a five-month period and ended in December. They reported seizing a variety of evidence from Estabrook’s room, including pornographic videos and a camera.

HOW MASSACHUSETTS TREATS CHILDREN

The boundaries between one part of the system and another are notoriously porous. Kenneth Wooden, Executive Director of the National Coalition for Children’s Justice, testified before a Congressional Subcommittee explaining that there is little difference in the background and characteristics of children in care regardless of whether they have been labelled “dependent,” “neglected,” “status offender,” “CHINS” (Children in Need of Supervision), or “emotionally disturbed.” It was his impression that a “shell game” was being played with the labeling process, with dependent children, relabeled as “disturbed” or “hard to place” being shuttled off to private, often profit-making institutions in ever greater numbers. As a result:

Instead of orphanages, we now have so-called “treatment centers” – a “growth industry” which feeds on unwanted children just as the nursing home business depends for its existence on large numbers of the unwanted elderly. And, as is the case with the elderly, the systematic neglect and maltreatment of children in these facilities is being subsidized by the federal government.

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On March 25, 2014, Citizens for Juvenile Justice released a report on the conditions endured by youth who are detained for minor misdemeanors and status offenses as minor as a missed appointment with a probation officer.

According to its press release, “A high proportion of Massachusetts youth charged with minor offenses are held in prison-like facilities, even though research clearly shows that detaining kids increases recidivism, according to a report released today by Citizens for Juvenile Justice.”

The report, entitled Unlocking Potential: Addressing the overuse of detention in Massachusetts, found that more than 50 percent of youth in detention have only misdemeanor charges, a percentage that has increased over time. While Massachusetts has substantially lowered the number of detentions overall, the Commonwealth is detaining the same proportion of arraigned kids, despite reform efforts. The report explains:

Every year, Massachusetts spends millions of dollars to lock up youth in juvenile “detention” facilities, not because they have been found guilty of a crime, but because they are unable to pay for bail or have violated a condition of probation by doing something like failing to attend school or arguing with their parent. We do so even though the vast majority of these youth are charged with minor offenses and pose no risk to themselves or others.

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A companion report prepared by the Massachusetts Budget and Policy Center was release simultaneously. That report, Unlocking Potential: Examining the Funding of Juvenile Detention and Effective Alternatives in Massachusetts, provides a look at the budgetary and cost-savings implications of further reform efforts.

The report notes that on January 1, 2013, of 97 kids in detention, more than two-thirds were held in secure detention. Another 28 were in a staff secure, shelter bed facility. Only three were placed in foster care.

Expansion of community placements in foster care has been slow, accounting for only seven percent of placements in FY 2013. In the state, there are currently only six foster homes, providing a total of 12 beds, available for youth in detention.

While the report does not directly address the issues of foster care, what is clear is that the more humane alternative to detention – with all of its well-documented shortcomings – is unavailable because the foster care system is so flooded with children who simply do not belong there. The secondary consideration would be that federal fiscal incentives reimburse states for children removed from their homes for “protection” under Title IV-E of the Social Security Act, and do not provide the same revenue streams for children being held in temporary detention.

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Just how children and youth wind up in “the system” was addressed in a 2012 report issued by Citizens for Juvenile Justice in partnership with the American Civil Liberties Union of Massachusetts, and the Racial Justice Program of the ACLU’s National Legal Department. As the report explained, students in Massachusetts are being handcuffed, booked, and sent to court for behavior once handled by schools and parents, including swearing, slamming doors or banging lockers, failing to follow directions, or being disruptive in hallways.

The report, Arrested Futures: The Criminalization of School Discipline in Massachusetts’s Three Largest School Districts, examined school-based arrests in Massachusetts’ three largest school districts – Boston, Springfield and Worcester – evaluating which students were being arrested and why. The report found that arrests for disruptive, but otherwise relatively minor misbehavior, made up a substantial percentage of all school-based arrests.

This is part of a national problem, as the Annie E. Casey Foundation explains in a report issued in 2011:

incarceration in secure congregate-care youth corrections facilities has persisted as the signature characteristic and the biggest budget line item of most state juvenile justice systems across the nation. This status quo has been buttressed in part by public fears of youth crime and by politicians’ fears of being labeled “soft” on crime. The aversion to change has been further reinforced by the closely guarded economic interests of communities that host these facilities – and of the workers employed to staff them.

MASSACHUSETTS FOSTER CARE
THE PRIVATE PROVIDERS

In January of this year, Erin Smith and Donna Goodison of the Boston Herald took a close look at one troubled private agency that has a three-decade-long history in Massachusetts, reporting that:

Massachusetts MENTOR — the for-profit company embroiled in claims it mishandled the sexual abuse allegations of an 11-year-old autistic foster child — is part of a national company with nearly $1.2 billion in annual revenue that was recently suspended from doing business in Texas, a Herald review shows.

Texas MENTOR, under the national umbrella of the Bay State-based The Mentor Network, was barred from making any new foster care placements in September after the July death of 2-year-old Alexandria Hill, Texas child welfare officials told the Herald.

The Lone Star State case has raised questions about Texas MENTOR’s screening process of foster mother Sherill Small, who faces a capital murder charge for allegedly smashing the tot’s head against the floor, according to investigative records.

The Herald continues on to explain: “The Mentor Network, a national company held by a private equity firm with dozens of subsidiaries such as Massachusetts MENTOR, has also reportedly mishandled foster care cases in other states that resulted in allegations of neglect or abuse, according to numerous news reports.”

In Massachusetts, “the company was blamed for failing to vet the foster mother who killed 4-year-old Dontel Jeffers in 2005 – a failure that led the push to re-brand and change the name of the state Department of Social Services to the Department of Children and Families.”

In March of this year, Massachusetts State Auditor Suzanne Bump announced that the Department of Children and Families had failed to check whether registered sex offenders were living in or near foster homes, and that it neglected to ensure that all children received required medical screenings within seven days of being placed in state care.

According to the audit, the Department of Children and Families could not adequately document that required background checks had been performed on all people living in foster homes. In addition, DCF could not adequately document that the personal information of children in its care was being safeguarded, opening the door to possible identity theft.

According to an article by the Center for Public Integrity, after two years of research, Marcia Robinson Lowry, executive director of Children’s Rights, Inc., says her group was surprised to conclude that the Massachusetts child welfare system is “one of the most dangerous in the country on a number of significant measures.”

FOLLOWING THE MONEY

The Wisconsin Department of Justice launched a criminal investigation into possible wrongdoing by Community Care Resources, Inc., a foster care agency that the state has accused of misusing millions of taxpayer dollars. As the Wisconsin State Journal explained it:

The state Department of Children and Families has revoked CCR’s license to place foster children and license foster parents, alleging that the company has overcharged counties by $6.1 million between 2009 and 2011 in part to pay for excessive salaries, three homes, six vehicles and three boats for owner Dan Simon and his wife, Mary, who also works at the company.

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The state’s Joint Legislative Audit Committee ordered an audit of all such agencies after three were found to have financial mismanagement and other problems.

The report, released in October 2013, explains, “In recent years, DCF has sought to revoke the licenses of several child-placing agencies based on misuse of state and federal funds, such as payments for excess salaries, personal expenses, and undocumented expenditures.” The report ultimately questioned “558 transactions totaling $129,525 made by child-placing agencies.”

THE FOSTER CARE CONTINUUM

It has always been this way; the crucial point being that it is part of a continuum of care that extends back many decades of time. In 2003, Los Angeles Daily News reporter Troy Anderson explained: “Since 1998, county auditors have found more than $9 million in unallowable or questionable expenses by the private foster-care agencies that have contracts with Los Angeles County.”

Anderson noted that: “The audits revealed taxpayer funds were used to pay off Las Vegas gambling debts, call psychic hotlines and pay for jewelry, parties, lottery tickets, alcohol, vacations, antiques, artwork and even a cremation.”

In 2002, the Office of Ohio State Auditor Jim Petro conducted a series of extensive foster care audits. As Petro explained: “Evidence of questionable spending at some of these agencies led to comprehensive reform efforts at the state and county levels. Petro, at the request of the Ohio Department of Job and Family Services, launched audits of 25 randomly selected foster care agencies. Auditor of State Jim Petro opposes efforts by the Ohio Association of Child Caring Agencies to stop oversight of public foster care funds.”

Among the findings: Luxury car leases, tickets to sporting events, country club memberships, a cruise, limousine service, personal loans, and political contributions. All at taxpayer expense – and all from money intended to be used for children in foster care. Among the Auditor’s findings against one private foster care agency: “$1,209,680 in questioned costs for unallowed investments, a sports car, plastic surgery and health club dues.” Among the Auditor’s findings against another: “$492,974 for checks written to cash, a personal vehicle lease and other items.” SAFY of Ohio, Inc., was charged by the Auditor with misallocating “$5,106,893 for high management fees paid to a parent company and other items.”

As of October 2002, a total of $9,150,048 was identified by the Auditor as having been expended by private foster care agencies in a manner often inconsistent with federal law and policy. But the state never got any of that money back.

As for Massachusetts, on July 18, 1995, the Boston Globe reported:

A leading legislative critic of the Department of Social Services yesterday charged that the agency’s private contractors are squandering money intended for troubled families on high salaries and bloated bureaucracies, and demanded a major overhaul of the system.

“I followed the dollars and the dollars told me a story that wasn’t very pretty,” said Rep. Marie J. Parente (D-Milford) while testifying at a hearing on the DSS foster care system before the Senate Committee on Post Audit and Oversight.

Parente, who chairs a special legislative committee on foster care, said 500 private vendors spend 40 percent of their DSS funding on administrative costs.

Private agencies dole out $9,225 in administrative costs to provide only $11,275 worth of services to one family for a year, she said.

“We want to buy their services, we do not want to purchase their BMWs and their Porsches,” Parente later told reporters, adding that more money should be directed toward families.

A Christian group home in Tennessee incorporated as a non-profit, and overseen by Gary and Billie Rich, operated about a half-dozen homes for abused and disadvantaged children.

They were forced to close after reports that adolescent male residents had repeated – and sometimes forced – sex with each other. Five boys aged 13 and 14 since have pled guilty to rape charges.

The items which were to be sold at auction included office equipment, a complete commercial kitchen and 19 vehicles including service trucks, a 40-foot motor coach, eight passenger vans and a 1991 Mercedes 420 SEL.

“I’ve been to all the sales this year, and I’ve not seen anything like the scope of this auction,” said auctioneer Chris Headrick.

The non-profit, which received payments of $2 million per year to care for children, also divested itself of real estate. Interestingly enough, records show that it transferred land to Child and Family Services of Knox County for $130,000.

To be sure, not all group homes and institutions are corrupt. A San Joaquin County Grand Jury report released in 2013 explains “some Group Homes are well managed, following regulations aimed at protecting the youth and giving them a positive formative life experience. Other Group Homes appear to be operated on a financially motivated basis with lax adherence to regulations.” The Grand Jury concluded:

Taken together, the issues revealed as a result of this investigation bring into question the overall effectiveness of the current oversight of Group Home Providers by the very agencies that have been charged with providing a positive life experience for the youth they serve.

A major part of the problem is that child protective services agencies act far too quickly in removing children from their homes. “In 2008-09, CPS removed 3,000 children from dangerous homes and placed them into protective custody,” explains a 2010 report by the Sacramento County Grand Jury. This results in a continued crush for placements. The bureaucratic structure should not be one of convenience, rather it should be child focused, as the Jury explains:

CPS has been structured for the convenience of the organization, not in a way that works best for the children. For CPS to succeed in its mission, it must change. It must focus on children, on understanding and measuring what works for children, and providing it to them. Its new mission to put the welfare of the child and family at the core is a good step, but much work will be needed to accomplish this goal.

CLOSE UP: THE TEXAS FIASCO

As of August 28, 2013, Children’s Rights, Inc., has sued more than 15 other states for mistreatment of foster children and lost only two of those cases, executive director Marcia Robinson Lowry explained to reporter Robert Garrett of The Dallas Morning News.

Against the steady trickle of child deaths, the organization’s class-action lawsuit, which accuses the state of poorly supervising foster children in its care, will proceed. Retired U.S. District Judge Janis Graham Jack of Corpus Christi certified a class of representative plaintiffs that includes over 12,000 abused and neglected Texan children who have been permanently removed from their birth families, The Dallas Morning News reports.

The Order granting class certification, filed on August 27, 2013, explains that the Plaintiffs have generally alleged that, “Texas policies and practices result in structural deficiencies that put all children who are or will be in [DFPS’s Permanent Managing Conservatorship] at an unacceptable risk of harm.” The Order continues on to explain that the Plaintiffs:

ask the Court to certify a General Class and four subclasses. Count I alleges a violation of Fourteenth Amendment substantive due process rights to adequate care and a safe, secure, and suitable placement while in State custody. Count II alleges a violation of the First, Ninth, and Fourteenth Amendment rights to family integrity of the members of the putative Licensed Foster Care Subclass. In each of their claims Plaintiffs assert that there is some structural deficiency that constitutes a policy or practice of Defendants that violates class members’ constitutional rights.

As of February 29, 2012, 6,626 children – 55 percent of the children in the State’s care – had been placed outside of their home counties. In addition, 2,986 children – or 25 percent of the children in the State’s care – had been placed not only outside of their home counties but also outside of their large multi-county DFPS-administered Regions. And, as of August 31, 2011, 35 percent of the children in the State’s system had been in five or more placements while in State custody, according to the Complaint.

Whether litigation is the answer when it comes to reforming child welfare systems is subject to some debate. What is clear, is that there has been no shortage of reform efforts through litigation over time. A comprehensive report entitled Welfare of Children: Lessons Learned from Class Action Litigation was released by the Center for the Study of Social Policy in January 2012. The report explains: “For the past 40 years, advocates have resorted to class action litigation to address difficult and longstanding problems in public child welfare systems and poor outcomes for children and families. Approximately 70 class action lawsuits are pending or have governed some aspect of child welfare practice in nearly 30 states, and almost 20 states are currently working to implement consent decrees and/or other court orders related to the reform of their child welfare systems.”

With respect to the effectiveness of such reform efforts, and as of their possible unintended consequences, the Center notes that:

Debate among advocates, public administrators and other key stakeholders about the merits and consequences of class action litigation in child welfare is lively and frequently heated. Individuals hold strong and often divergent views about the long-term costs and benefits of involving the federal or state courts in child welfare policy and practice. While there is evidence of significant and lasting improvements that began with litigation-driven reforms in a number of jurisdictions, there are also examples where expectations have exceeded results, where one problem has been solved only to create another, or where it has simply taken far too many years to achieve the anticipated improvements of the litigation. Many jurisdictions that were ultimately successful in reforming their child welfare systems with litigation experienced periods of failure and wheel spinning before finding the road to improvement.

One of the primary shortcomings of efforts at reform through litigation is that innocent families always seem to fall by the wayside. The emphasis is almost invariably on providing a higher quality of foster care. Hiring more caseworkers, lowering the caseloads, providing better training, closer monitoring of placements, and enhanced scrutiny of kinship care are chief among the goals that litigation teams seek to attain. Scant attention is paid to placement prevention.

Vested with near-unlimited authority to remove a child from her home to the perceived safety of the system, caseworkers in doubt will frequently take the safest course of action – that of removing a child from her home. The end result is an overloaded foster care system.

While noting that there are many dedicated professionals in the field, the Texas Report of the Adoption Review Committee notes in its 2010 report that “the system in which they are operating is unable to effectively handle the volume and deeply complex natures of children brought into state care. In fact, there is increasing evidence to show that our foster care system is sometimes doing more harm to our children than good.” (Emphasis as in the original document).

This point is not entirely lost on legislators. Senator Eliot Shapleigh posted an article on his web site by the Dallas Morning News reporting that children in care were sleeping in state offices and hotels in alarming numbers, as child protection workers could not find a space in a foster home or a residential treatment facility for them. In one month alone, 160 children spent at least one night in a state office or a hotel room at an estimated cost of $345 a day.

The sheer volume of CPS cases, regardless of whether or not children actually enter state care, strains the courts to the extent that the due process rights of tens of thousands of families and children are impacted. As the Legal Representation Study released in January 2011 reveals: “Texas courts conduct approximately 90,000 child-protection hearings each year. The sheer number of child-protection proceedings and the large geographical size of Texas present real challenges in identifying systemic issues for court improvement.”

“Removing children from their homes is not only devastating to the children and parents, but it is also expensive for the taxpayer,” the report explains. Due process concerns are clearly implicated, as the quality of legal representation for parents is, at its best, inconsistent. Cases may drag on for many months of time, and, as the report explains, “the longer a case lingers without resolution, the more emotionally traumatizing it is for children and their families.”

Not only is the humanitarian cost so high, so is the cost to taxpayers. The only winners in the game are the bureaucrats in the Department, and their private services providers. As the report explains:

During the pendency of the average case, the federal, state, and local coffers spend tens of thousands of dollars to provide out-of-home placements for the child and services to the family struggling toward reunification. Based on a sampling of counties across the state during the 2009 fiscal year, Texas counties spent an estimated $34 to 37 million a year on appointed attorneys’ fees associated with CPS cases. But, the legal fees pale in comparison to the more than $1.2 billion spent annually on Child Protective Services in Texas. In 2009, Texas spent over $343 million on foster care alone, averaging out to almost $13,000 per child in care. It stands to reason that more effective resolution of CPS cases would save taxpayer money.

Providing vigorous and effective advocacy to parents may well be among the better places to begin truly reforming the system. “Because the stakes are extremely high with lifelong impacts on children and families, Texas must give serious consideration to improving representation,” the report explains. More to the point, the report cites a Bexar County Judge as saying: “If the adversarial process is working and the attorneys are engaged, we’re going to have fewer kids in state care.”

CLOSE UP: THE PRIVATE PROVIDERS

The shortcomings of National Mentor Holdings have been well-documented. They are, however, only one of approximately 300 private providers with which the Department of Family and Protective Services holds contracts. How do some of the others stack up?

In early August of 2013, the Texas State Auditor issued two reports, each of which examined a handful of private service providers for compliance with regulatory policies. Among the problems identified in the first audit:

Wings of Refuge, Inc. had serious weaknesses in its financial processes. Those weaknesses create a significant risk of misappropriation of federal and state funds. Wings of Refuge did not submit a 2012 cost report until July 2, 2013, which was 93 days after the Department’s due date and after auditors were no longer on site. Because of this, auditors were limited in the scope of work that could be performed at that provider. In addition, auditors identified $62,031 in purchases and cash withdrawals during the 2012 cost reporting period that the provider made in California, although the provider is contracted to provide services for children in Texas.

The second audit dealt with contractors in the Children With Special Needs Services Program. Among the Auditor’s conclusions with respect to one contractor: “The Department determined that, for 65 percent of appealed Program claims it reviewed in fiscal years 2011 and 2012, the contractor’s original decision on the claims was incorrect. That underscores the importance of proactively monitoring claims the contractor pays and implementing procedures to regularly sample and review various types of claims.”

In August 2012, the Auditor’s Office released the results of an audit that examined five private service providers, including: Simply Love All People, Inc.; Antelope Valley Child, Youth, and Family Services; Unity Children’s Home; Carter’s Kids, Inc.; and Agape Manor Home.

“All five providers audited did not consistently maintain adequate supporting documentation to demonstrate that they accurately reported funds they expended for providing 24-hour residential child care services,” the Audit explains.

The report continued on to say: “Auditors also identified instances of noncompliance with cost report and background check requirements at all five providers audited.”

In 2011, the Auditor examined five other private providers, four of which were generally found to be in compliance, however, the report indicates that: “The remaining provider audited–Connecting Lifes–had serious weaknesses in its financial processes. As a result of those weaknesses, auditors determined that data necessary to perform the audit objectives was unreliable and could not determine whether Connecting Lifes appropriately spent the federal and state funds it reported on its 2010 cost report.”

Similarly, the Auditor’s Office examined five private residential care providers for compliance in 2008, finding rather extreme issues with one of them: “Because of financial weaknesses at the fifth provider audited–the Willie C. McDuffie Residential Treatment Center–auditors were unable to verify that this provider’s direct and administrative costs were reasonable and appropriate. This provider did not always maintain supporting documentation for its expenditures, and it did not always record financial transactions accurately in its accounting system.”

Welcome to Texas, the State that Nathan Newman of the Progressive States Network described as being: “The poster child for the failure of privatization.”

THE HUBER FAMILY’S FOSTER CARE NIGHTMARE

i
The Huber family, reunited.

The Huber family’s foster care nightmare began in August 2012. It is a story that is so familiar to family advocates, that some are left wondering in amazement at how Child Protective Services can “rescue” a young child into care without ruling out the more obvious of explanations; brittle bone disease – a rare form of which, as it turned out, young Kensley Huber had.

“I was changing her diaper and I had just lifted up her right leg and heard a pop,” said Andrew Huber. That popping sound was that of a broken leg, but when Andrew rushed Kensley to a Dallas hospital, doctors found other broken bones in various stages of healing. Her dad was thereafter arrested for child abuse.

Advocates are also familiar with another phenomenon that is quite unique to child abuse accusations. The presumption of innocence goes out the window, and the accused is literally considered guilty until proven innocent. Bria Huber learned that during her interview with the authorities.

Bria recalled being questioned by the police, telling reporter Tiffany Craig that: “Halfway through my police interview, they told me that they believed that Andrew had been systematically abusing Kenley and her fractures were at varying stages of healing.” Bria added that police told her that she’d been “married to this monster that I never met.”

Andrew was in and out of court, even as Kenley was taken to specialists across the country in an effort to find answers. It was a diagnosis of Ehlers-Danlos syndrome from geneticist Dr. Golder Wilson that finally set the stage for the family’s reunion.

“One of the main symptoms is the underlying structure of the body, including the bones and joints, is fragile. So you get more fractures,” Dr. Wilson said. “And therefore, just handling a baby routinely, like any parent would do, can lead to a fracture.”

With Andrew’s innocence now proven, the family was at long last reunited.

“Right now it’s just a joy to be back home and have the house,” Andrew said. “That’s far outweighing the anger. The happiness to have my girls back.”

“The Huber’s want their story to be shared with as many people as possible. They don’t want any other family to go through the nearly 14 months of hell they did,” said reporter Tiffany Craig in closing out the family’s story.

The Huber family is among the more fortunate ones. They had the financial wherewithal to seek the medical answers that eluded local physicians. And, their daughter had survived her stay in the Texas foster care system.

A SYSTEM IN SEARCH OF SOLUTIONS

One of the more comprehensive surveys of abuse in foster care was conducted in conjunction with a Baltimore lawsuit. Trudy Festinger, head of the Department of Research at the New York University School of Social Work, determined through casereadings that over 28 per cent of the children in state care had been abused while in the system. Reviewed cases depicted “a pattern of physical, sexual and emotional abuses” inflicted upon the children in the custody of the Baltimore Department.

A survey of alumni of what was described as an “exemplary” and “model” program in the Pacific Northwest would bear this out, as Richard Wexler explained during his Congressional testimony, “In this lavishly-funded program caseloads were kept low and both workers and foster parents got special training. This was not ordinary foster care, this was Cadillac Foster Care.”

In this “exemplary” program, 24 percent of the girls responding to a survey said they were victims of actual or attempted sexual abuse in the one home in which they had stayed the longest. Significantly, they were not even asked about the other foster homes in which they had stayed.

To drive his point home, Wexler cited Benjamin Wolf, an ACLU attorney who brought a landmark suit against the Illinois foster care system, describing that system as: “A laboratory experiment to produce the sexual abuse of children.”

That this occurs with such alarming frequency is due in no small measure to the system being flooded with children who do not belong in state care. One reason that the system is as flooded with children who don’t belong there is the deluge of accusations pouring into the hotlines. These stem from a wide variety of sources. As the Sacramento County Grand Jury explains it:

Allegations against foster parents unfortunately are not an infrequent occurrence. Biological parents who have had their child removed from their home sometimes use allegations against foster parents in an attempt to get their child back. Foster children themselves can also use this method in an attempt to be returned to their parents. Anyone in the community who has a grudge against a foster parent knows that a call to CPS will bring someone to the home for an investigation and cause problems for the foster parent. Some nationwide studies indicate that the rate of allegations that are unfounded can be as high as 90%. CPS is charged with the responsibility to determine which allegations are true. The number of false allegations against a family can ‘muddy the waters’ and bias CPS in favor of the foster parent.

A major component contributing to the disater that is foster care are the adoption quotas that came about as a result of the Adoption and Safe Families Act. The legislation provides federal financial incentives to states to increase the number of adoptions.

In an article posted on PBS Frontline, Dorothy Roberts explains that in Massachusetts, Children’s Services of Roxbury, a private social service agency in inner-city Boston, was given a rather specific quota. The state told the agency to double the number of children it usually placed for adoption. The Illinois Department of Children and Family Services circulates a list of agencies ranked by the percentage of children they move into adoptive homes. “It’s embarrassing to get a low ranking,” said the director of one Chicago agency.

It has been said that nature abhors a vacuum. Every empty bed in a foster care facility represents a space to be filled, inasmuch as it represents a loss of revenue both to the contractor providing the space, and to the state which stands to lose federal revenue that it has come to rely on.1

There are some other modest solutions worth exploring to reduce the reliance on group homes. Writing in Southern Economic Journal, Brian Duncan and Laura Argys explain:

our estimates indicate that a $100 increase in the basic monthly foster care payment reduces the number of children placed in group homes by 28.7%, with more children instead going to nonrelative foster homes. Further estimates indicate that the children moved out of group homes are equally likely to be placed in two-parent and single-parent homes, but they are disproportionately placed with caregivers who do not share the child’s race or ethnicity. Finally, a $100 increase in foster care payment will decrease the number of times the average child is moved from one foster placement to another by 20%.

In the final analysis, the one thing that can effectively clean up an industry in perpetual crisis is a meaningful reduction in the number of children in foster care, regardless of whether they are placed in conventional foster homes, congregate care, or group homes. It is time to stop treating children as a primary revenue stream.

 

1. Revenue maximization has in some instances been codified into state law. See for example New York State Finance, Article 6, § 97-ZZ Federal Revenue Maximization Contract Fund, which provides that: “Such fund shall consist of those revenues specified by the department of social services, subject to the approval of the director of the budget, and properly received from the federal government on account of federal revenue maximization activities conducted by the department of social services and social services districts, both directly and through their contractors, that are credited or transferred thereto from any other fund or source pursuant to law.” See also Florida Statutes, Title XXX, Chapter 409, Social Welfare, Social and Economic Assistance. Commonly referenced as The Revenue Maximization Act. (“For purposes of this section, the term ‘agency’ means any state agency or department that is involved in providing health, social, or human services, including, but not limited to, the Agency for Health Care Administration, the Department of Children and Family Services, the Department of Elderly Affairs, the Department of Juvenile Justice, the Department of Education, and the State Board of Education”).

 


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