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February 5, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

The picture I paint of the child welfare system isn’t pretty, but it’s also incomplete. This article fills in one of the key gaps, but, alas, doesn’t improve the picture (ProPublica, 2/2/16). Indeed, it’s all of a piece with what I’ve said so many times before.

It’s about the New York City court system that is tasked with dealing with child protection cases. The article is mostly an interview with Abigail Kramer, a journalist who studied the child welfare courts in New York and wrote a report for the New School’s Center for New York City Affairs. Perhaps what best conveys the state of those courts is the fact that, when Kramer describes their “absurd levels of dysfunction,” it’s a compliment. She’s trying to express how they’ve changed for the better.

The main problem Kramer identifies is the preposterous amount of time it takes to get anything done.

Kramer cites Family Court statistics showing that some judges handling what are known as child protective matters – often involving the removal of children from dangerous households – have caseloads exceeding 500. Brooklyn’s system seems particularly troubled. Kramer offers one way of appreciating just how troubled: When a judge determines that a child is at risk, he or she issues an order requiring the authorities to figure out if the child should be removed from their household. In Brooklyn, fully half of these cases have reached no such determinations more than a year after the judge issued the order.

These of course are cases in which someone believes that a child may be at risk for abuse or neglect and a decision needs to be made about what, if anything, to do. Should the child be placed in foster care? Does the parent need services like drug addiction therapy, job placement, housing support? Or should proceedings begin to terminate the parent’s rights? Those are important issues, too important to wait for a year to decide.

What can happen to a child in a year if it’s left with an abusive parent? Everything up to and including death. What can happen to a child who’s placed unnecessarily in foster care? Ditto, plus the trauma of being separated from his/her parents and not knowing what the future holds.

Moreover, a judge with a caseload of 500 cases is an incompetent judge, not because he/she isn’t smart, scrupulous and hard-working, but because no one can deal intelligently, compassionately or justly with that many cases. It’s impossible.

So Kramer’s emphasis on the glacial pace of proceedings in these courts, while altogether appropriate, may mislead ProPublica’s readers. Yes, individual cases move slowly, but the judges don’t. They’re moving at a furious clip, trying to outrun the tsunami of cases they know is coming their way. Taking a long time to decide a case might, in some circumstances, indicate careful deliberation. Not here.

Five years ago, you could have walked into any child protective courtroom in the city and seen that it was contending with impossible circumstances. Judges had five or six hearings scheduled for the same time slot. Lawyers were running from courtroom to courtroom, missing trials. Families sat in waiting rooms all day. When things are so frenetic, it’s impossible to stop and think about what would work better — either for a particular family or for the system as a whole.

When judges have that many cases, they’re working as fast as they can and maybe even faster. That’s not a good prescription for getting their rulings right. It’s a good prescription for moving the docket, irrespective of the outcomes.

In short, the system Kramer describes is the worst of two worlds – impossibly tardy resolutions of cases, plus hasty decisions along the way.

But it’s not just the volume of cases that makes things move so slowly, sometimes it’s the cases themselves.

Cases can move slowly for lots of reasons. Families come in with complicated problems. It might take time for a parent to get into a drug treatment program, or to find stable housing. You want to allow for that time, so kids can safely go home. But delays also happen for more dysfunctional reasons — for example, because a foster care agency failed to provide a service that was ordered at the last hearing or an attorney shows up unprepared…

The tougher problem is that court proceedings depend on a universe of social services that function outside judges’ control. When a parent is charged with abuse or neglect, she usually ends up with program of mandated interventions: parenting classes, therapy, drug treatment, etc. Sometimes those services are high-quality and helpful; sometimes parents spend half a year on a waiting list to see a mediocre therapist three subway rides away from home. Obviously that’s going to slow things down, but the problems and solutions are much bigger than what can be achieved by a package of Family Court reforms.

I’ve argued long and hard for CPS agencies to emphasize provision of services to parents in need of them so that they can be better parents and their kids can remain with them rather than being tossed into the foster care system. And of course providing those services takes time. Parenting classes or drug treatment programs don’t happen overnight, and while they’re going on, the kids may well be in foster care. That can be problematical, for the kids, the parents and the court system, but it’s usually better than the kids losing their parents and the parents their kids.

Kramer and the ProPublica writer, our old friend Joaquin Sapien, also point out that the court system dedicated to children’s welfare cases is so bad for one reason at least. It deals almost exclusively with the poor.

“We have taken delay to a new level that other courts don’t have,” Chris Gottlieb, co-director of the Family Defense Clinic at the New York University School of Law, told Kramer. “This level of delay would never happen if the litigants were people who garnered respect.”…

Yes, there are parents that need intervention in order to keep children safe, but when you spend time in Family Court, it’s painfully clear that we apply a level of scrutiny to poor families that the rest of us would never tolerate. And our disdain is reflected in every piece of the process, from the dismal state of waiting rooms to the quality of social services to the time it takes to get a trial.

I don’t doubt that for an instant. Indeed, I’ve argued much the same before. But the phenomenon extends far beyond the courts. The relative impunity with which CPS caseworkers go about their jobs is in part due to the fact that the parents they deal with are usually poor. That tends to mean they’re uneducated and unable to know, appreciate or assert their rights. So caseworkers get used to running roughshod over them.

It’s that sort of assumption by caseworkers that leads to cases like that of Alexander and Danielle Meitiv of Silver Spring, Maryland. The Meitivs are highly educated and comparatively affluent, which I suspect came as a great surprise to the Montgomery County CPS caseworkers who treated them and their children with such highhanded disrespect. The Meitivs are now suing them for doing so. I strongly suspect that it never occurred to those caseworkers that, perhaps for the first time in their careers, the behavior that poor, uneducated parents tolerate, wouldn’t be acceptable to the Meitivs.

Abigail Kramer sees a bit of hope for the courts on which she reports. I hope she’s right. But overall, her report adds to our understanding of the children’s welfare system. At least in New York City, courts and CPS agencies compete to see which can be most dysfunctional, while letting children pay the price.

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