Sometimes you just have to sue. Believe kids. The adoption intervention battles continue. Here’s some child welfare news.

The Miami Herald published a joint Op Ed by the next friends in the H.G. v. Carroll suit detailing why they (we) felt a lawsuit was both necessary and good. Kids in foster care aren’t getting what they need – that’s why we’re suing DCF.

A lawsuit against Lutheran Services, Children’s Network of Southwest Florida, Camelot, and others has partially survived a motion to dismiss.  The suit alleges negligence and 1983 violations from the various agencies’ failure to seek dental care for a child who  experienced significant medical harm.

More kids are getting Baker Acted, some as many as 10 times in a row. Having someone committed for stabilization results in their extra-judicial confinement in a lockdown psychiatric facility with no meaningful possibility of review. One or two times may be necessary for their safety, but ten times means you’re not solving the underlying problem and/or severely violating that person’s constitutional rights. Someone should look into that.

I do not think it means what you think it means. State has plan to fix care for foster teens says DCF Secretary Mike Carroll. Also says Mike Carroll, “We have zero tolerance for any management or practices that could result in anything less than excellent care for the children and families we serve.” I’m curious what “excellent” means in that sentence.

CHS, on the other hand, says we need to end foster care (as we know it) by embracing prevention services. Also, a ton of money is about to come down for prevention services, so this is a truly brave stand against the system.

You would save a lot of anguish by just believing kids. A juvenile detention center employee was arrested on federal charges after the death of a 17-year-old boy who died after being beaten by other kids in the facility. The employee used a honey-bun bounty system to encourage violence. Kids have been describing this practice for years, but nobody really believed them.

In case law news, I recognize there is a well-defined community of people who hate the idea of adoption intervention. However, when a parent consents to a private adoption, you can’t ram their TPR trial through to cut them off at the pass. Hold the intervention hearing and go from there. Y.G. v. Dep’t of Children & Families, 1D18-49, 2018 WL 2066792 (Fla. 1st DCA May 3, 2018).

On the other side, when your private adoption intervention gets denied, remember that the Juvenile Rules apply to adoptions from foster care. Be careful: motions for rehearing do not toll the time for an appeal under the Juvenile Rules. B.S. v. Dep’t of Children & Families, 1D17-2515, 2018 WL 1954457 (Fla. 1st DCA Apr. 25, 2018).

Relatedly, you can’t bifurcate a TPR trial into grounds and MBI and then kick the parent out (or go on without them) after the grounds are proven. R.E.B. v. Dep’t of Children & Families, 5D18-588, 2018 WL 1972642 (Fla. 5th DCA Apr. 27, 2018).  Terminating someone’s parental rights should actually be hard.

Here’s my current reading list. Family Court Review published a special symposium on The Trump Administration and Children’s Human Rights. The intro by Barbara Stark lists all the reasons it’s worth getting your hands on a copy.

The Souls of Poor Folks report is a fantastic study of structural forces that reproduce poverty across generations. The growth of foster care as an organized industry is mentioned briefly as one of those structural forces. Quoting Margaret Prescod of Every Mother is a Working Mother:

What increasingly happened [with welfare reform] was that monies that would previously go to mothers on AFDC, and therefore to families headed by single mothers, got sucked into child welfare agencies and states were using those resources for child custody, foster care, and adoption services. Instead of going to support mothers with their housing or other basic needs, children are being taken away and placed in foster care, or are up for adoption, not because they are abused or neglected but because they are poor.

 

Thanks for having me! I had the pleasure of presenting at the Florida Disability Conference last week. The topic was using due process fees to expand your advocacy team. We had a great audience of people who definitely knew a lot more than I do. I’ve been told there will be a video at some point.  The powerpoint and sample pleadings can be found here.

The Miami lawsuit moves forward, incarcerated parents are parents, Hillsborough is on fire. Your periodic child welfare news roundup.

Here’s an update on what’s happening in child welfare. Got a tip? Send it to robertlathamesq@gmail.com

Motion to dismiss denied. Our office, along with other child advocates, sued the Department of Children and Families on behalf of our clients who have experienced inappropriate placements and dangerously frequent placement changes. We are seeking injunctive and declaratory relief to improve the quality and robustness of the placement array in the Southern Region. The suit is being prosecuted by Children’s Rights and the law firm Baker McKenzie. More information and the complaint can be found here. On Tuesday, the trial judge issued an order denying the Department’s motion to dismiss. The case is moving forward.

We can do better by families with incarcerated parents. The Brookings Institution will be publishing a journal and policy brief focusing on improving outcomes for children whose parents are incarcerated. This is just in time for Florida’s recent legislative change to clarify the requirements of case management for parents in jail. And hopefully in time to discourage FDC’s recently proposed reduction in family visits due to staffing shortages.

Gainesville does right. Gainesville has banned conversion therapy for minors. Why this has to be done at the local level is beyond me.

Foster kids with kids. A study in Texas showed that foster kids there were five times more likely to get pregnant.   The one-year pregnancy rate was 5.7%, compared to 1.2% in the general population. And yet we hear constantly about programs that won’t work with pregnant teens.

Tampa on fire. Hillsborough shut down an agency and is now struggling to manage 2,000 kids.  Most of the workers from the old agency will be absorbed into other agencies. This a good reminder that privatizing a public system does not necessarily create an efficient market for that system’s services. Government exists for a reason, folks.

Yes, children have positions. The Pennsylvania Superior Court ruled that a 5-year-old has a right to effective representation in a TPR case where his court-appointed attorney never met with him before taking a position that appeared potentially in conflict with his actual wishes regarding his mother. “At the time of the hearings, Child was just shy of six years old. While Child may not have been old enough to participate actively in [the attorney’s] representation of him, it is not unlikely that Child has feelings one way or another about his mother and his permanency.” (h/t to the Altoona Mirror)

Exodus 23:9.  Florida’s resettlement offices are being reduced. This is bad news for kids.

“One way you do not recruit volunteers is charge them a lot of money out of pocket”

The Florida House Civil Justice & Claims Subcommittee heard testimony on HB 57. The bill would authorize pro bono attorneys representing special needs foster children to access due process funds for costs like deposition, evaluations, and subpoenas. The bill is sponsored by Representative  Frank White of Pensacola: “One way you do not recruit volunteers is to charge them a lot of money out of pocket, and that’s what this bill fixes.

The testimony begins around 14:30.

hb57testimony

Watch to the end for thoughts on retroactive application from Mr. Pitts.  The committee voted unanimously to move the bill forward. Next stop: Justice Appropriations.

 

Everything you need to know about Florida child welfare news until something else comes along

Every time I tried to post this entry, I’d find something new in my inbox. 

News

DCF says its investigators and caseworkers are still carrying dangerously high caseloads. http://floridapolitics.com/archives/247809-workloads-work-life-balance-continue-hobble-children-services-workforce

The Tampa Bay Times is asking for records regarding abuse of adults by home health care providers. The case was assigned to Karen Gievers.  DCF is not objecting to the request. http://floridapolitics.com/archives/247326-times-court-order-dcf

The Orlando Sentinel reports on the use of $1B in state scholarships at poorly regulated and poorly managed private schools.  http://www.orlandosentinel.com/features/education/os-florida-school-voucher-investigation-1018-htmlstory.html

A federal case in Kentucky recently ruled that relative caregivers were entitled to the same payments as foster families. (Will Florida follow? Relatives get a fraction of what strangers get to care for the same kids.) http://www.the-messenger.com/news/local/article_0b84ad05-2c0c-5e14-abad-7772c6b4b7a9.html

Commentary

Agreed, judges cannot ban children from courtrooms. Please stop it. http://justicebuilding.blogspot.com/2017/10/kids-are-people-too.html

Legislation

The Senate Finance Committee issued a report on the states’ weak oversight and control of their privatized child welfare providers. The report finds that 86 kids died while under one company’s care. (Florida uses/used this company too, but reportedly did not respond to the committee’s request for information.)

“State child welfare agencies report they have procedures in place to monitor child welfare providers’ performance and outcomes,” the report said. “But this investigation … shows that these policies are not always followed; exceptions are made, waivers are granted, profits are prioritized over children’s well-being, and sometimes those charged with keeping children safe look the other way.”

https://chronicleofsocialchange.org/featured/senate-report-slams-public-management-private-foster-care-industry/28470

In coordination with the release of the report, the Child Welfare Oversight and Accountability Act of 2017 was filed. It would increase incentives for relative care, monitor privatized systems more closely, and increase scrutiny of child deaths. https://chronicleofsocialchange.org/child-welfare-2/senate-foster-care-bill-incentivize-kin-monitor-private-providers-child-fatalities

In Florida, a bill to allow pro bono attorneys for kids to access due process funds is moving through committee.  http://www.flsenate.gov/Session/Bill/2018/00146

And a bill to ban child marriages is also moving forward (which is to say we could stand to be a little less backwards). http://www.flsenate.gov/Session/Bill/2018/00140

Regulation

DCF amended its rules on placing kids in out-of-state residential mental health programs. https://www.flrules.org/gateway/View_Notice.asp?id=19571319 

Sheridan House Ministries, which runs a child care facility (group home), received an exception to the rule that its program director have the required educational and experience levels. https://www.flrules.org/gateway/View_Notice.asp?id=19541928

DCF is amending its rules to clarify the procedures for missing kids. https://www.flrules.org/gateway/View_Notice.asp?id=19459478

DCF is also creating a rule on emergency and runaway shelters. https://www.flrules.org/gateway/View_Notice.asp?id=19411851 and https://www.flrules.org/gateway/View_Notice.asp?id=19411948

And DCF is amending its rule on out-of-state criminal checks. https://www.flrules.org/gateway/View_Notice.asp?id=19604008

 

Whew that’s it for now. 

Miami Herald tears open the juvenile delinquency system’s horrible secrets

hearldcover.png

Carol Marbin Miller and Audra Burch are unstoppable investigators. Their 2014 report Innocents Lost laid bare the child welfare system’s rampant lack of effort and oversight in abuse investigations. Now, with FIGHT CLUB, they set their sights on the juvenile delinquency system. And what they find is appalling: mismanagement of facilities, unbelievable hiring practices, and victimization of children that the Department of Juvenile Justice was charged with helping.

As I read through these articles, I could hear the voices of clients who have told similar stories over the years. Once they’re safely out of the programs, they often just want to look forward to better things instead of re-litigating the past. They had no sense that fighting would do any good for them or future incarcerated kids. The only rational strategy they saw was to escape.

One of my students today asked how this can continue to happen. “It doesn’t make any sense,” she said. But it does make sense. If you pull vulnerable kids out of their communities and homes, put them in isolated places behind locked closed doors, supervise them with some good staff who are poorly trained and unsupported, and supervise them with other staff who are evil, malicious, or unkind — this makes perfect sense. If you prioritize investment in security systems instead of schools, this makes sense. If kids who speak out get hurt and adults who don’t play along get fired, it makes sense. And if doing all of that generates $500 million a year in revenue for people who do not have to experience any of its harms, it almost couldn’t be any other way.  Despite whatever good moments may happen on any given day at any particular program, violence has always been a feature of these systems, not a bug.

It is very easy to dismiss or rationalize away a single child’s stories of mistreatment as an aberration or justly deserved punishment. Articles like this and other acts of collective reckoning are often the only avenue towards justice available. What those in power do with these stories will reflect their priorities and assumptions about the world we live in. We have to challenge those assumptions. The solutions cannot be a pay raise for staff (money does not make you good), better video cameras (too many eyes watched these things happen already), or higher penalties for staff who hurt kids (kids should not be put in harm’s way to put more people in jail).

If you watch the looped video on the Herald’s website long enough, the answer becomes pretty apparent. You don’t need to fix them. These programs shouldn’t even exist.

And the first child welfare bills this session are…

If it feels like the legislative session just ended, that’s because it did. Florida’s constitution allows legislators to choose the session start date in even numbered years instead of the normal first Tuesday after the first whatever this is a confusing way to do dates. Why would they move it? Spring Break, campaign season, and possibly bloodlust for turkeys.

The hurricanes delayed the calendars a bit, so we are just seeing the first bills moving through committees. And they are:

SB 96 – Human Trafficking Education in Schools. Revising the required health education in public schools to include information regarding the dangers and signs of human trafficking; authorizing a student to opt out of a specified portion of the health education under certain circumstances, etc.

SB 108 – Florida Kidcare Program.  Establishing the Kidcare Operational Efficiency and Health Care Improvement Workgroup as a task force administratively housed in the Department of Health to maximize the return on investment and enhance the operational efficiencies of the Florida Kidcare program, etc.

SB 222 – Guardian ad Litem Direct-support Organization.  Abrogating the future repeal of provisions related to the guardian ad litem direct-support organization, etc.

That human trafficking one probably needs a tweak: letting parents opt their kids out of the HT curriculum seems unwise, since some parents traffic their kids.

Some other child welfare-related bills I’m watching this session:

  • The 240 or so bills that eliminate Florida’s law permitting minors to marry with parental consent. Because, you know, some parents traffic their kids.
  • A bill that would permit pro bono attorneys for kids in dependency cases to obtain due process costs from JAC. This is a no-brainer for me. Pro bono attorneys volunteer their services, but they should not also have to personally fund all of the litigation costs related to the case when there is always money leftover in the special needs appointment pot.
  • Bills requiring a study on the use of direct files to charge minors as adults. Given the disparities we already know exist across the state, we really need to look into this.

I’m sure there will be lots more to come.

Florida case law update: bio fathers granted standing to assert rights

Two Florida district courts issued favorable rulings for biological fathers this month. Both fathers were granted standing and a chance to assert their claim over the objection of the presumptive legal fathers.

The Second District permitted a biological father to challenge the paternity of a man on the birth certificate. The court approved of the following:

  1. bringing paternity actions in dependency cases (the rules permit it);
  2. standing of bio fathers to challenge paternity based on fraud, duress, or material mistake of fact (in this case, the mother’s fraud and the legal father’s mistake of fact);
  3. not putting any weight on a court’s identification of the parents at a shelter hearing (it’s not a paternity hearing); and
  4. recognizing prospective parents as participants when in the best interest of the children  (the statute requires it).

In re Y.R-P. (Fla. 2nd DCA 2017).

There’s nothing legally new here, but it is a nice roadmap for handling those convoluted cases where two (unmarried) men are vying for the same child.

The Fourth District addressed the issue of standing when the legal father is married to the mother in Perkins v. Simmonds (Fla. 4th DCA 2017). The Fourth rejected an absolute bar to challenging the presumption of paternity when a child is born into an intact marriage, and instead re-affirmed its prior holdings that the presumption must give way when it “outrage[s] common sense and logic.” (Not a particularly helpful formulation, but better than an inflexible bar.) In this case, the child was given the bio father’s last name, was financially supported by the bio father, and had a strong relationship with the bio father. That was more than enough to give the bio father standing to assert paternity.

These seem like good outcomes. Maybe one day we can be done with the legal concept of legitimacy and all the problems it invites.

See also:

  • Theresa Glennon, Somebody’s Child: Evaluating the Erosion of the Marital Presumption of Paternity, 102 W. Va. L. Rev. 547 (2000) (via heinonline.org)
  • David D. Meyer, Parenthood in A Time of Transition: Tensions Between Legal, Biological, and Social Conceptions of Parenthood, 54 Am. J. Comp. L. 125 (2006) (via jstor.org)
  • Sarah McGinnis, You Are Not the Father: How State Paternity Laws Protect (and Fail to Protect) the Best Interests of Children, 16 Am. U.J. Gender Soc. Pol’y & L. 311, 312 (2007) (via digitalcommons.wcl.american.edu)
  • Melanie B. Jacobs, My Two Dads: Disaggregating Biological and Social Paternity, 38 Ariz. St. L.J. 809, 810 (2006) (via digitalcommons.law.msu.edu)
  • Melanie B. Jacobs, Parental Parity: Intentional Parenthood’s Promise, 64 Buff. L. Rev. 465 (2016) (via digitalcommons.law.msu.edu)
  • Melissa Murray, What’s So New About the New Illegitimacy?, 20 Am. U.J. Gender Soc. Pol’y & L. 387 (2012) (via ssrn.com)
  • Leslie Joan Harris, Involving Nonresident Fathers in Dependency Cases: New Efforts, New Problems, New Solutions, 9 J.L. & Fam. Stud. 281 (2007) (via heinonline.org)

 

The Florida foster care stats you’ve been waiting for: 24,152 kids in out-of-home care & which CBC is the biggest?

It’s been awhile since I posted a pile of graphs, so here we go. Out-of-home care numbers are still rising. That’s probably not a good thing.

Oct Supervision Size
The number of children in out-of-home care continues to rise. The number of children in their homes under DCF supervision is a little down. This suggests we’re removing kids faster than we can obtain permanency for them.

 

All is not equal in the types of placements. Relatives are still shouldering most of the burden for foster care.

Placement Type Breakdown Oct 2017
Relative placements continue to be the largest single placement type for kids, growing faster than licensed family care. Facility placements have been flat for some time. Non-relative placements have seen an over 60% increase since funding was authorized for these placements in 2014.

 

Finally, which CBC is really the biggest? It has always depended on how you measure.

regino by size
The relative ranking of each region has been fairly consistent, even with increases and decreases in the statewide number of children in care. Most regions are rebounding to their pre-2007 days, with the exception of the Southern Region which is still comparatively low.

 

cbc by size
The rankings of CBCs by size has also been fairly consistent over time. Our Kids and Eckerd Hillsborough have consistently supervised the largest number of children. Again, some CBCs have rebounded, others haven’t. (Note these numbers don’t show where new CBCs took over for closed ones.)

 

Sheet 13
The rankings are very different when viewed as children in care per 1,000 children in the community. For example, Our Kids has consistently ranked as one of the smallest CBCs in proportion to its geographic area.

 

The numbers here are from DCF’s Child Welfare Trend Reports. DCF keeps their own visualizations at the Child Welfare Dashboard. If you see anything wrong, interesting, or that-I-missed, let me know.  Have a great weekend!

Attorney: “I don’t have to file a motion for every little thing.” Appellate Court: “Oh really?”

The Third District Court of Appeal reversed an order granting supervised visits yesterday because the trial court entered the order without proper notice to the Department. The opinion is surprisingly long for a simple “no notice, reversed” ruling, and the lone footnote may explain why:

1 In light of the statutory obligations and clear case law on the issue of modification of visitation, it was inappropriate of counsel to tell the judge that “I don’t have to file a motion for every little thing,” in response to DCF’s objection that it had not been properly noticed.

The attorney is correct. You don’t have to file a motion and give notice if your opponent doesn’t object.

Two cases out of Florida show the bias against fathers in child welfare

Let’s talk about fathers for a second. One critique of child welfare law is that it puts a significant burden on mothers while essentially ignoring fathers until they become inconvenient. Two cases out of Florida this month highlight this phenomenon.

In the first case, twin children were sheltered from their mother due to neglect. The father had been out-of-state in prison on drug charges for the twins’ whole life. He met the children only once when the mother brought them to see him while he was on a furlough pass. Once the case was commenced, he appeared at every hearing by phone and called the children during his furloughs — but not while in prison, he said, because he could only make collect calls. After the mother did not comply with her case plan, the Department filed for TPR on both parents. While the trial was pending, the mother died in a car accident. The father then learned that he would be released from prison five days after the scheduled TPR trial. He had a place to live and a job lined up. There children were not in a pre-adoptive home. The Court terminated his rights anyway. The First DCA reversed the termination.

In the second case, a child was sheltered at birth after testing positive for cocaine. The mother was married, but estranged from her husband. The biological father was on the birth certificate. Under the law, this scenario makes the husband the legal father. The family was advised how to fix the paternity issues and the biological father was sent away until he addressed his legal status. He filed a notice with the Putative Father Registry, but took no other action. A year passed, the mother did not comply with her case plan, and the biological father then filed legal motions to establish his rights to the child after TPR was already filed. The Fourth DCA held that the year and a half delay was too long — he had no parental rights because he was not fast enough in legally asserting them.

The problem here is twofold: first that the system was perfectly happy to ignore the fathers until they asserted their rights against a TPR; and second that the fathers appeared content (or at least not incentivized) to let the mothers do all the hard work to get the kids back until they failed. The trial judge in the First DCA case terminated a father’s rights despite no clear plan for permanency for the child — the children would have to build a relationship with either the father or a pre-adoptive family — and despite no apparent effort to actually nurture that relationship for over a year. (The mother, not the State, took the child to see the father on his furlough in Mississippi before the case came in.) The Fourth DCA, in its written opinion, unfavorably compared its bio father’s effort to those shown by the foster parents’ — a poor comparison given that the whole child welfare system is designed to recruit, train, and support foster parents (well, comparatively speaking), whereas the father was dismissed from the case and left to find his way back on his own. The father may have reasonably determined that the best course was to allow the mother to reunify and then reconcile with her and the kids, especially since he himself was not accused of any wrongdoing.

Neither of these cases had to end this way. We can resolve messy paternity issues early with little effort — especially when the legal father is completely absent. We can make concerted efforts to build relationships between fathers and their children, even if they’re out-of-state or in prison. What we shouldn’t do is ignore half of a child’s family.

Here are some resources on doing that:

Engaging Fathers and Paternal Family Members (childwelfare.gov)

Barriers to Father Involvement in the Child Welfare System (fatherhood.gov)

Exploring the bias against fathers in the Child Welfare System (ucdavis.edu)