The nuclear secret of child welfare is that most of the children in foster care should not be there. Most children in foster care are harmed more than they are helped by being taken from their families, and by being kept in foster care for too long. Children in foster care are torn from their schools, separated from their siblings, over-prescribed psychotropic drugs, and housed in dangerous group homes rife with abuse -- and it all happens behind the iron curtain of secret court proceedings.
Things haven't improved since 1991, when the National Commission on Children wrote "If the nation had deliberately designed a system that would frustrate the professionals who staff it, anger the public who finance it, and abandon the children who depend on it, it could not have done a better job than the present child-welfare system."
What's going on here? We're reminded almost any time a politician gets up a head of steam -- about Social Security, the budget deficit, crime, even foreign policy -- that there is no lack of ardor for children's issues. Everyone is in favor of children.
But our good intentions are rechanneled destructively by a grand narrative that is equal parts pernicious, inaccurate, and pervasive. A false storyline suffuses child welfare in the press, public discourse, and even among the lawyers, social workers and judges responsible for children in the system. That narrative is one of brutal, deviant, monstrous parents, and children who are fruit that doesn't fall far from the tree. We can't escape it, but it just ain't true.
To give you an idea of the relentlessness of the messages drummed into our heads, more than 90 percent of news stories about children are about violence by and against children. One researcher found that 70 to 95% of stories about child welfare are "horror stories," about gruesome, brutal injuries inflicted on children by unfathomably beastly parents.
As a result, when we think of children and foster care, we imagine brutality, savagery, deviance, and abuse. We think of horrible, heinous misdeeds perpetrated by monstrous felons. We think of murders that scream from the headlines, and the vile tragedy of family sexual abuse perpetrated against children ruined for life. These are, to use Edgar Cahn's phrase, "throwaway people."
There is another story, however. In fact, more than 70% of the children in foster care are there because of allegations that they were neglected, not abused. And neglect -- lack of food, clothing, shelter, supervision, or other necessities of life -- is poverty by another name: more than one-third of children in foster care, for example, could be living with their parents if only their parents had better housing.
Harmful, unnecessary foster care placements are epidemic in D.C. and throughout the nation. The National Conference of State Legislatures recently found, "[m]any children who are in foster care do not need to be there." Locally, then-incoming Mayor Gray's human services transition team warned of the harms caused by the D.C. Child and Family Services Agency's "expensive and harmful current practice of unnecessarily removing children from their birth families." A report issued by the federally-mandated D.C. Citizens Review Panel indicates that hundreds of children annually are taken from their families unlawfully. And in 60% of my students' cases at the University of the District of Columbia, the children were returned home from foster homes or group homes -- and were never found to be abused or neglected. These are kids who were taken from their homes for a few days, or a few weeks, or three months -- but it turned out they weren't abused or neglected, so they were returned.
One of the children in our cases was Kevin. Kevin was only seven months old at the time he was separated from his mother. He was born HIV-positive. The state took custody of Kevin because test results showed that his viral load was elevated. According to the agency, the doctor who treated Kevin said that the enormous elevation could only have been due to maladministration of the medication by Kevin's mother. The problem was that the test results were a month old, and Kevin's viral load actually was normal on the day he was taken. The other problem is that the doctor later signed a sworn affidavit stating she had never said that there could have been only one cause for the spike in Kevin's viral load. Kevin was returned to his mother's custody.
And James, who was taken from both his mother and his father -- who did not live together -- because his uncle came to school and beat him up for stealing a video game. The uncle didn't live with either parent or the child! James lived with strangers in foster care for a month and a half.
And finally, Isaac, who was apart from his mother for three months. The government alleged that Isaac's grandfather had beaten him across the legs and that Isaac's mother knew about it and failed to stop it. The government also alleged that Isaac was "educationally neglected" because he had missed seven days of school in the first two months of the term. Three months later, at trial, it turned out that the government couldn't even prove that Isaac had been hit, let alone by his grandfather. And the educational neglect? One of the days they said Isaac was absent was the day the social worker went to the school and took Isaac to foster care!
The judge sent Isaac back home after three months.
We have a foster care system full of children who should be at home. Children and youth in foster care experience multiple moves from home to home and high levels of abuse in foster homes and group homes. Former foster youth have sky-high rates of homelessness, unemployment, poverty, arrest and incarceration, teen pregnancy, dating violence victimization, and low educational achievement.
How can we be part of the solution? How can we disrupt the status quo? How can we fight the narrative?
We need to challenge the tired, dangerous narrative. We need to tell new stories.
The low-income people who comprise virtually 100% of child welfare-involved families? Suspend disbelief for a moment, and convince yourself they're rich. The crummy neighborhoods the children come from and the communities breaking down all around us? Think of those as strong and healthful, instead of shabby and pathologized.
Imagining a challenge to our approach to legal services provides a roadmap. Anti-poverty programs in general, and legal service providers in particular, see clients as the sum of their needs. Clients and litigants come to us with their problem. Indeed they only get our attention because they have a problem. And the first thing we ask is "What is your problem? What do you need? How can I help you?" And we try to solve the problem. We fill the hole, apply a band-aid, put a finger in the dike, whatever. You've heard the metaphors.
Here is a different model. Instead of merely asking: "What is your problem? What is the disease, the defect that brought this mother and child into my life," we can ask a different question. Not what is she lacking, but what does she have? Not only "what can I do?" but we can also ask her, "What can you do?" What are her abilities, her strengths, her assets?
How can we re-envision her as rich, powerful, and capable?
Well, can the mother whose child is taken away braid hair? Can she cook a meal? Can she smile at an elderly person in a nursing home? And let's think about that person in the nursing home. Can she watch a child recite a poem and clap for the child? Can she read a story? Can she share her own story about life "in the old days"? Does she know by heart, perhaps, a recipe for the best fried turkey you've ever eaten?
We can see with different eyes, and look for successes. Did the child's mother pull her neighbor's weeds last week? Or change a light bulb? Or pick up litter? These are things she did, not things she didn't.
Can she shop for groceries? Can she throw a party, or drive a neighbor to the doctor? Can she paint a room or clean a house or walk a dog?
The answers will be yes, yes, and yes.
In Chicago, eighth-graders in special education tutor first-graders in math. In Washington, D.C., returned prisoners provide children safe passage to school.
In Washington, D.C., our Youth Court is run by kids we might call juvenile delinquents. Youth Court gives us a chance to call them judges and jurors. It is a diversion program, in which the very youth who come through the court as defendants sit as jurors, reviewing infractions of other youth. They hear facts, deliberate, and impose sentences of community service, restitution, counseling, or an apology.
So it turns out that delinquent youth also are judges!
Our clients can do the things professionals do. Research is clear, for example, that women in violent relationships are the very best judges of their own safety, better than police, lawyers, case workers, or even judges. In Washington, D.C., when our highest court ruled that there was no statutory right to custody for non-parents, low-income grandmothers descended on the city Council, submitting statements and testifying about the necessity that the law be amended. And it was. In Washington, D.C., a homeless homeless advocate led a campaign to restore funding for homeless services.
So our low-income clients have power. Si se puede. Yes we can!
Now, if the mother is a person with assets, wealth, power, and strength, we see her differently. We learn from her, we admire her, we grow from knowing her.
It turns out we don't have all of the answers. We don't have a preordained stereotype into which we can fit her any more. She has busted through the narrative. We have to take her for who she is, the real person, the complicated three-dimensional, real person. She isn't a stick figure -- the deviant, monstrous black hole of problems, needs, and pathologies.
Her strengths and powers and abilities unlock ours. If she can do, so can we.
And what we can do together is change the conversation about child welfare. Remember the Citizens Review Panel report I mentioned? The Panel echoed Mayor Gray's own transition report, finding that excessive foster care placements are widespread and systematic. But the Gray Administration circled the wagons, insisting that the distinguished panel had it all wrong and that CFSA, despite the chorus of detractors and 20+ years of federal-court oversight, is just plain humming along. It's high time for District of Columbia voters to push back against that kind of stonewalling. It's time for D.C. residents to insist that the Council pull back the curtain of secrecy shielding the adults who disrupt children's lives.
In child welfare, we can make a difference by preventing children from entering foster care unnecessarily. And we can end children's stays in foster care as quickly as possible. We can achieve our goals of limiting entries to foster care and speeding exits from it by looking for the strengths of the people involved in our cases, rather than their weaknesses. We can look for what they can do, rather than what they can't. We can focus on their abilities, not the shortcomings over which we often obsess -- like drug addiction, disability, illiteracy, poverty. We can start from a premise that families involved with child welfare are bundles of assets, rather than collections of problems.
If we can do all this, we can help families build, rather than watch them fall.
Reducing the scourge of unnecessary foster care placements and lengthy stays in foster care will save children's lives. Everyone who cares about kids has the opportunity to keep children from unnecessary, devastating disruption, fear, and pain.
Fortunately, to paraphrase Brendan Sullivan, Oliver North's lawyer, we are not potted plants. We can do something. Yes, we can.
This post was adapted from an article forthcoming in Georgetown Journal of Poverty Law and Policy, Volume XIX (2011).
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