It is traumatic for children to be removed from their families. Everything in their world changes: their caretakers, the house they live in, the bed they sleep in, playmates, school, community, and place of worship. Contact with their families in familiar settings is important to reassure them. Visitation is also essential so that parents and children can maintain and improve their relationship while their children are in foster care. Research studies show that adequate visitation is the single most predictive indicator of whether children will return home.
The state of Massachusetts is seemingly determined to display to the entire world how stunningly arrogant its child protection forces can be, the latest outrage being that of denying Justina Pelletier a visit with with her own mother on Mother’s Day.
The tragic saga continues, with protesters continuing to rally in support of the family. England’s newspaper The Mail reported on the story today, noting once again that the case has gained international attention. The Canada Free Press, which bills itself as “a proudly independent, 24/7 news site,” also reported on recent developments in the case yesterday.
The latest spin to be put on matters is quite unexpected. In an unattributed editorial, the Boston Globe suggested yesterday that the attention given to the case had “made all sides more likely to dig in.”
The editorial continued on to suggest that Justina’s reunification with her family is “most likely to happen through quiet work, adjustment, and accommodation — and at some remove from a heated public debate.”
The editorial raises the question of whether an agency that claims to be acting “in the best interest” of a child would change its course in response to adverse publicity. It smacks of retaliation – something that the agency had been resoundingly criticized in the past for.1
To those unfamiliar with how the child protection system operates, these events come as a series of shocking surprises. To those who have followed these issues for some length of time, however, the only thing that is in the least bit surprising is that this is being done with absolute impunity, with both the blessings of the highest officials in the State, and with an international audience looking on.
Visits between children and their parents are frequently used as a tool against reunification by child protection agencies. Legal Services of New Jersey explained in a report on the child welfare system that “some parents have been sanctioned from welfare for not complying with work activities when they had a scheduled visit with their child.” The report illustrates the problem by recounting the difficulties encountered by José and Juana S. whose three school-aged children were removed from their home:
The children were placed in separate foster homes, two of them outside of their home county, and none remained in the same school district. The children did not see their parents until more than a month after placement because DYFS did not develop a visitation plan right away. Nor was there any phone contact or sibling contact. Once visitation was established, it was limited to once every two weeks for one hour in the DYFS office under DYFS supervision. The DYFS office was generally crowded with other visiting families, allowing for little privacy. Because visitation could only be scheduled between 9:00 a.m. and 5:00 p.m., Monday through Friday, both parents missed numerous visits due to their work schedules. For the children living out of the county, visitation interrupted the school day. Frequently one of the children missed the visit because no DYFS worker was available to transport him or her. Rarely were missed visits rescheduled. When one of the foster families reported that their foster child was upset after visits, DYFS immediately reduced the frequency of visits, without exploring the reasons for the child’s upset. DYFS referred both parents for counseling.
The Legal Services report continues on to explain the importance of visitation, noting that: “It is traumatic for children to be removed from their families. Everything in their world changes: their caretakers, the house they live in, the bed they sleep in, playmates, school, community, and place of worship. Contact with their families in familiar settings is important to reassure them. Visitation is also essential so that parents and children can maintain and improve their relationship while their children are in foster care. Research studies show that adequate visitation is the single most predictive indicator of whether children will return home.”
The problem has been identified as a longstanding issue in child protection; among the recurring themes that arise time and again, as family advocates fight an uphill battle to reform an intransigent and often-belligerent system that frequently works to the detriment of the very children that it is intended to serve.
During a public hearing On Oversight And Accountability of the Child Welfare System before the New York State Assembly, one grandmother recounted her efforts to intervene to protect her own grandchild from abuse, only to be rebuffed by the agency at every turn. She’d been denied visitation apparently because the agency did not want to be inconvenienced by her revelations of physical abuse against her grandchild:
ACS workers failed to insist upon seeing him when denied access to him, simply leaving, then reporting to the courts that allegations were unfounded, giving the false impression that they had seen him well and healthy. I had to turn to videotaping the evidence as proof of abuse. That was my grandson’s salvation, which I had done during visits and before I had been denied visitation.
During that time I couldn’t see him my grandchild was told that I was a liar, that I was a B and that I was dead. Visitation was reinstated when a judge viewed the videotaped evidence and my daughter could not explain the number of bruises, belts and bumps on his little body.
Over the years I have had to reach out to ACS, the agency mandated to protect him, and always they have failed. They failed to see that at three years of age he was so underfed he weighed only 20 pounds; a mere five pound gain from his four month weight. One worker stated to me that beating a baby with a belt is not abuse, as children in his country are hung. Americans, he felt, exaggerate. This worker sabotaged the case when he gave my daughter the names of all her friends who said they had witnessed the abuse and that they were concerned. Every one of them backed off after they were threatened, leaving only me.
The Annual Report of Washington State’s Office of the Family and Children’s Ombudsman – released in January 2012 – describes the troubling course taken by that state’s child protective services agency in one particular case:
CPS conducted an inadequate investigation of allegations of physical abuse of a non-dependent fifteen year old youth by a parent, and then delayed in resolving the case. The Ombudsman found that CPS failed to notify the parents of the allegations in a timely manner, failed to interview collateral sources of information, and demonstrated a bias against the parents. The youth was promptly interviewed by CPS and law enforcement the day after the referral was received; the youth described family conflict but denied being abused, and stated that the allegations had been made in an attempt to get attention. CPS did not inform the parents of the allegations until two and a half months later, and informed the parents that the case would be closed as unfounded. A few days later, a new referral was received again alleging physical abuse by the parent. After interviewing the youth, who had bruises on both arms reported to be caused by a parent, law enforcement took the youth into protective custody and CPS filed for dependency, placing the youth in foster care. The youth’s conflicting statements between the two interviews were not assessed in greater detail, and CPS did not interview school personnel, community professionals involved with the family, or other collateral sources, who later described the allegations as highly unbelievable and probably attributable to a high level of family conflict. Nevertheless, the inadequate CPS investigation resulted in a founded finding of physical abuse. Furthermore, CPS failed to provide appropriate visitation between the youth and the parents. No visits occurred for an entire year, and very little progress was made in the dependency case, as the parents were still denying the allegations.
As for how this particular case was finally resolved, the Ombudsman explains: “At this point the Ombudsman received a complaint and conducted a full investigation and review of the case. The Ombudsman immediately intervened by bringing the above findings to the attention of the regional administrator. A new social worker was assigned to the case, and family counseling was established with a mutually agreed-upon therapist. The Ombudsman also requested that the CPS finding of physical abuse be reviewed by the area administrator. Ultimately, the youth admitted that the allegations of physical abuse were untrue, and the bruises attributed to being caused by the parent were actually caused by the youth’s boyfriend. The founded CPS finding was overturned. Regular visitation began, and the youth returned home the following month. The dependency was dismissed.”
There is more to be found in the Ombudsman’s report – not the least of which are clear violations of the Fourth Amendment with respect to CPS’ interviewing of one particular child. As the Ombudsman’s Office explains it, with emphasis as provided in the report:
CPS violated law, policy and procedure in conducting an investigative interview of a six year old non-dependent child regarding sexual abuse allegations. Law enforcement was present for a portion of this interview and participated in questioning the child. After reviewing both the transcript and the audio recording of the interview, the Ombudsman contacted the Deputy Regional Administrator with the following concerns:
- CPS failed to ask the required questions to establish that the child’s participation in the interview was voluntary and not a seizure under the 4th Amendment.
- CPS failed to terminate the interview upon the child’s request. The child first said he wanted to get back to class less than a quarter of the way through the interview. He repeated this request at least fifteen times over the course of the interview.
- CPS failed to establish this young child’s ability to understand the difference between truth and lie.
- Lack of coordination between CPS and law enforcement. A detective entered the room after CPS had already begun questioning the child. At one point both adults were questioning the child simultaneously.
The 123-page report detailed a laundry list of complaints heard by the Ombudsman’s Office, not the least of which included violations of the Fourth Amendment rights of children and parents; children being unnecessarily removed from parents; lack of contact between children and their parents or other family members; failure to place children with relatives; inappropriate placements of children; and failure to ensure timely and appropriate services to reunite families.
Some problems had only worsened over the years. The Ombudsman’s report notes that: “Complaints about the agency’s failure to reunite families increased 17 percent from 2010, approaching the number for 2009.”
From Nebraska – a state recently in the news for its miserably failed efforts at privatization, and for its stunning lack of compliance with federal financial policies to the tune of over $22 million – the Foster Care Review Board reports on two particularly egregious examples of how visitations were thwarted by the agency and its private service providers – in one case potentially putting a toddler’s health at risk:
Example 1. DHHS had kept mother’s visits at fully supervised because she has a pattern of doing well then “falling off the wagon.” She cannot do well consistently to make DHHS comfortable with moving to monitored visits. The Lead Agency did not agree with DHHS. The Lead Agency decided they would not reauthorize supervised visits and refused to provide supervised visits. Mother missed two days of visits before the case manager convinced the Lead Agency that visits were court ordered and they had to provide them.
Example 2. A parent was having unsupervised visitation with her toddler. The child was running a high fever and becoming dehydrated. When mother tried to get an appointment with the doctor she was told there was an issue with payment authorization. The mother made numerous unsuccessful attempts to contact the service coordinator, service coordinator supervisor, HHS caseworker, and HHS supervisor. Mother then called the FCRB for help. FCRB staff made several calls before reaching a DHHS administrator who was able to immediately facilitate the child getting needed treatment.
Dare I take a moment out to note the striking parallels between the second of these two cases cited by the Nebraska Review Board and the Pelletier family’s efforts to secure proper medical treatment for their own child, and how their efforts have been repeatedly rebuffed by both DCF and Wayside Youth and Family Support Network?
THE 15 MONTH CLOCK
In commenting on the State’s reunification plan, Lou Pelletier recently expressed during a press conference that: “It’s been 15 months of pure hell for Justina and our family.”
That 15-month period in and of itself is problematic, as the federal Adoption and Safe Families Act mandates that termination of parental rights proceedings are to be instituted against parents whose children have been in state care for 15 of the most recent 22 months.
Nebraska’s Supreme Court confronted the 15 month clock in the case of In re Xavier H., 740 NW 2d 13 (2007). The essence of the case was that the department had thwarted efforts at visitation and reunification, then moved to terminate the mother’s parental rights based on the child having been in care for 15 or more of the most recent 22 months – a requirement of the federal Adoption and Safe Families Act. Katianne, the mother, appealed. The State’s Supreme Court ultimately ruled in her favor, writing:
Much concern has been expressed over Xavier’s need for permanency and his extended stay in foster care. The record suggests that Xavier can find permanency with his natural mother, to whom he should have been returned as soon as it was safe to do so. There is little question that the alleged deficiencies in Katianne’s parenting would not have justified Xavier’s removal from the family home had they been the basis upon which the Department had sought adjudication in the first place. They should not have served to keep him out of the home once the reasons for his removal had been resolved; neither should a child be held hostage to compel a parent’s compliance with a case plan when reunification with the parent will no longer endanger the child.
Other courts have questioned the constitutionality of the “termination by default” provisions of the legislation. In Matter Of Jonee, 181 Misc.2d 822 (1999) the Family Court of Kings County, New York, ruled that individualized determinations of unfitness are necessary to terminate family relationships, and that absent such an individualized determination, the petitioner’s nieces “and thousands of other children in State-supervised foster care are subject to an arbitrary procedure that leaves their fate to happenstance. Both the law and the courts owe them more.”
In 2001, the Illinois Supreme Court held that the fifteen month provision of the state’s Adoption Act based on ASFA was unconstitutional. In re H.G. 757 N.E.2d 864 (2001) involved a parent whose substance abuse problem prevented her from meeting the requirements stipulated by caseworkers, and therefore from achieving reunification within the fifteen month timeframe. The Illinois Supreme Court recognized the fundamental right to family integrity and invoked strict scrutiny to analyze the state’s procedures. The Court ultimately concluded: “We decline to recognize that the State has a compelling interest in removing children from foster care in an expeditious fashion when that removal is achieved in an unconstitutional manner.”
Meanwhile, adoption subsidies continue to soar, reflecting federal changes in child welfare policies. As a joint study put out by the Center For The Study Of Social Policy and the Urban Institute points out: “Although on a per-child basis adoption is much less expensive than long-term foster care, the growth in expenditures for subsidies has been startling. Nationwide, adoption assistance payments rose from $442,000 in 1981 to an estimated $100 million in 1993 to more than $2 billion in 2007.”
To this day, the federal government continues to dole out financial rewards to states for increasing adoptions, much to the detriment of children and their families.
ABUSE IN STATE CARE SWEPT UNDER THE CARPET
Justina has come forward with credible claims that she has been mistreated by staffers at Wayside, and to the extent of being accosted during a shower, as her sister Jennifer recently explained. Yet, her claims were swept aside by DCF, with its supporters going so far as to cast her as a liar.
Not only is her report credible by virtue of where it allegedly took place – meaning in state care – but so, too, is the pattern of denying abuse in state care entirely consistent with how the system works. It has always been this way.
California’s Little Hoover Commission referenced the California Department of Social Services’ legal division as having discovered a “secret room” in the Los Angeles Department containing 15 filing cabinets holding approximately 3,000 case files on foster care facilities that had problems that were not reported to the state. In one case, ten foster children slept on the floor of a garage, while ten more were crammed into an upstairs bedroom. Three had been abused, one with a fractured skull and two broken limbs. Yet the home was not closed until months after the conditions were discovered.
Caseworkers in Florida’s agency reportedly ran files relating to a botched investigation through a paper-shredder, accusations recently mirrored during the hearings into the death of Phoenix Sinclair, in Canada.
In New York, a New York City caseworker indicating as “unfounded” the repeated rapes of a young girl in institutional care, notwithstanding the testimony of credible witnesses, according to a report issued in 1993.
An agency administrator in Oklahoma quietly dismissed two agency employees accused of the sexual abuse of foster children without so much as a blot on their records. In Utah, it was reported that a “whitewash of wrongdoing” in an edited version of an audit of a child welfare office resulted in death threats being made against one legislator who dared to push for the public release of the unexpurgated document. In Illinois, a report of system-wide abuses at the Columbus-Maryville shelter was suppressed by Cook County Public Guardian Patrick Murphy.
For years, the mantra repeatedly chanted by the industry was “believe the children” when they report abuse. There has always been this implied parenthetical comment that followed that statement: “except when they report abuse in state care.”
As a California Grand Jury report of recent vintage aptly explained, when it comes to CPS, “Nothing Ever Changes – Ever.”
Justina Pelletier’s mother, Linda, posted two videos on Youtube today.
1. See e.g. Victoria Benning and Diego Ribadeneira, “DSS Wrong to Remove ‘Mikey,’ Panel Reports,” Boston Globe, (February 12, 1993) (reporting on panel’s finding that the removal of a foster child was a “knowing, egregious abuse of power” by the state Department of Social Services).