We oppose family separation at the border (and everywhere else)

Our clinic has joined with 540 organizations across the country to oppose the forced separation of children and parents at the border. There is no legal, policy-based, or moral justification for harming children in an attempt to deter their parents from seeking asylum or entry into the United States. The Administration has options to keep children and families together and has declined to use them. The forcible, extended separation of children from their parents for any reason unrelated to the child’s immediate safety is inhumane.

Young Center for Immigrant Children’s Rights Commends Child Welfare Experts’ Overwhelming Opposition to Parent-Child Separation.

Read the letter here.

APD: dependent children are “automatically” and “immediately” off the wait list when reunified

The Florida Agency for Persons with Disabilities issued a declaratory statement this month, at the request of the Children & Youth Law Clinic, clarifying that foster children on the wait list for developmental disability services will be immediately placed into the waiver program upon the presentation of an order reunifying the child with their parents. The practical effect is that no family should become “stuck” in foster care or under the supervision of the Department of Children and Families due solely to their inability to privately pay for developmental disabilities services for their children.

The request for a declaratory statement came from a series of cases handled by the Clinic involving children with developmental disabilities who had loving and safe parents, but who could not be reunified in their family’s home due to the severity of their disability. These children typically resided in residential rehabilitation programs that provided round-the-clock staff trained to support the child and keep them safe. Many of these cases became “stuck” between DCF, APD, and the courts because of uncertainty over who would pay for continued services if the dependency case were closed. APD’s declaratory statement makes clear that these children can be reunified with their parents and remain in an appropriate residential rehabilitation program without a lapse of services.

A special congratulations to students Tyonna Brent and Isabel Jolicoeur for their great work on the petition.

The full Order Disposing of the Petition for Declaratory Statement is available here.

Extended Foster Care Rules Go Live Monday

After approximately 23 months of sometimes intense debate, DCF’s administrative rules on Extended Foster Care will go into effect on Monday, November 2, 2015. They can be found here or by searching at www.flrules.gov. The final rules focus heavily on a youth’s admission and discharge from the program, including clarifying eligibility requirements and appeal procedures.

Many of the features I wanted to see in the rules did not make it, unsurprisingly. I am, however, glad the rules are done, and congratulate the folks who wrote them under stress from the many conflicting demands of both the powerful and the loud.

On what I would change

I was talking with someone recently about what we’d change in the system if we had a magic wand. I decided against the normal lines of “more money” or “better services,” and said make it trustworthy, safe, and welcomed by the families it’s supposed to serve. Build relationships with people and communities before the children are even born, not after things have already fallen apart. Build quality community childcare centers, support churches that support families, improve school programs, parks, and streets. Create community mental health centers within a 20-minute distance from anywhere in your city or town. Work with the people to commit to eliminate homelessness, to reduce crime, to secure food stability, to expand access to transportation and work programs. And inject into every one of those projects the goal to protect and raise up the children you find there.

Many of those projects are already being done, but they’re not enough. To be welcomed by the people you serve, you also have to stop the threats and the coercion, the violent shows of force, the piling on of expectations and guilt until people crack and give up. No more courtrooms, bailiffs or liaison officers with guns. No more case plans or arbitrary permanency goals. You could still terminate rights for egregious abuse, abandonment, and surrenders; but declare an amnesty for anyone else who seeks help for as long as they seek it. Make a place where people who need support willingly go for it, instead of a system that repeatedly slams the door in people’s faces until they are broken and defeated. Building a kinder system may keep people around longer. The drive to help is why many people work in child welfare. The bureaucratic, police-state nature of it is what runs many people out in tears.

Your mind just went to “but people will take advantage of that system and never actually change and kids will linger, will suffer, will…” You can let go of that too. Taking advantage of help is what help is for. The kids will be fine at grandma’s, dad’s, or the nice lady down the street’s. We would have to change how and where kids are placed. Being out of home is only “lingering” when out of home is bad. Otherwise, it’s just called “living” and would be measured by how each individual child is doing at it. (Like family court already does, so I really haven’t made anything up here.)

Any system that you cannot navigate safely without a lawyer always by your side is not a good system. Lawyers are a road sign of danger and imminent injustice. And any program lead by lawyers whose “vision” is to robotically apply the law will just hurt those it serves. The law is a rough sketch that guides us; it’s a necessity to organize our collective actions, a basic framework to prevent injustice. We should not ignore it, and should continuously move it forward. But, the law is a floor not the heavens; the beginning not the end of our opportunity and capacity to help. The law is not creative, compassionate, empathetic, caring, or wise. The people who implement the law bring those things to it, and give it life. Lawyers who know how to build should stay. Lawyers who only tear things down can go.

This is not just feel-good talk. We consistently make the mistake of “improving” the system to suit the needs of power instead of people. In the recent Peer Consultation Team Report on the Southern Region, nobody on the committee talked to a parent, child, or caregiver about what they experience as the supposed beneficiaries of the system. The word “parent” doesn’t even exist in the report not preceded by the word “foster.” If your instinct was that their opinion is biased or doesn’t matter, that momentary dehumanization is part of the problem. Take a look at this paragraph from a recent appellate opinion:

DCF determined that the father and E.B. were with the mother and A.R. at a hotel in Sebring. The father explained they went there to “start a family of our own, without the conflict” that the mother previously experienced with the grandparents. He testified that he sees a psychiatrist regularly for his prescription medication and was taking it during the incident. Officers were sent to perform a wellness check. One of the officers testified that the motel room was “clean and orderly,” with food, formula, diapers, two beds, and a crib. He felt there was “no immediate danger to the children and [the parents] had money.” DCF informed the officer that the mother had outstanding warrants, and he arrested her and DCF took the children into custody.

E.R. v. Dep’t of Children & Families, 143 So. 3d 1131, 1133 (Fla. 4th DCA 2014)

Everything was fine, so DCF made it not-fine and took the kids. Why would a DCF worker ever intentionally rip up a family like that? There are ways to handle a warrant that don’t involve arrest. If you wonder why families lie to DCF workers, hide children and injuries from them, and make it generally impossible, it’s because they have every reason in the world to doubt that anything good will come from cooperation, even though I know that there are good people in the system who really do want to help. We talk a lot about the general public’s impression of DCF’s incompetence, lack of funding, and mismanagement, but we should also give some thought to the reputation it has in the communities it is supposed to serve, and how that reputation puts children at risk. I have heard long-time case managers tell stories about people grabbing their children and running inside when “Charlie” gets out of her car. Given its goals and the compromised populations it works with, DCF should be the most user-friendly system in the world, to prevent any parent who wants help from ever being turned away. Instead, it’s unpredictable and unkind, and at times abusive itself.

We need more money, and more time, and more workers in the system who stay around longer. But we also need patience and empathy built right into its bones so that people come to us for help and not terrified at the chaos and uncertainty of what may happen to them. Magic wands don’t exist. We got here through our choices, and only different choices will get us someplace better.

Child Abuse Ad that Only Kids Can See

An advertising friend of mine sent this to me:

via Gizmodo. Set aside that this is an advertiser bragging about their own cleverness. I think the fact that cleverness is required forces people to confront that kids are more likely to be abused by family members than by strangers. Reaching those kids has always been difficult.

As the Gizmodo author notes, how long before advertisers use this trick to market toys and sugar directly to kids where parents can’t see? Answer: They already do that by making sure kids entertainment is completely unenjoyable to the average adult.

Criminal contempt for skipping school?

Is there any legal authority for a judge to order a dependent child to attend school and then hold her in contempt when she skips? I’ve heard that a child is currently sitting in juvenile detention over the weekend under those exact circumstances.

(Note: not one of my clients.)

Edit:

A quick Westlaw search of “section 39 & contempt” gave the first result as A.A. v. Rolle, 604 So.2d 813 (Fla. 1992), which specifically holds:

The acts of contempt committed by the dependent children in this case constituted running away from home and refusing to go to school. These acts are ones that the legislature deems a sign of children in need of services, not children in need of punishment. See § 39.01(8)(a), Fla.Stat. (Supp.1990). It is inconceivable that a system of justice that has removed these children from their parents or guardians, ostensibly “[t]o provide … care, safety, and protection,” section 39.001(2)(b), would instead incarcerate them because of resultant behavior attributable to neglect or abuse.

We therefore hold that, under chapter 39, juveniles may not be incarcerated for contempt of court by being placed in secure detention facilities.

That seems clear enough to me.