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February 26, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

This article is one of the best I’ve read on the child welfare system (Livingston Daily, 2/25/16). The system in question is Michigan’s. The article is written in a sometimes-haphazard style, but its ace in the hole is the detail it provides about what happens legally when CPS decides a child has been abused or neglected. Predictably, there’s not a lot of good news.

As with most child welfare agencies these days, Michigan’s is charged with keeping families together if possible. That’s a good thing and it usually means offering services to parents considered wanting by caseworkers. But weirdly, those very caseworkers, that very child welfare agency that’s supposed to be helping the parents, becomes their enemy once they appear in court. By any stretch of the imagination, that’s a conflict of interest, but it’s also the way it is in Michigan juvenile courts.

And there are suspicious holes in what CPS will and won’t do for parents.

When he was 15, Lamar McGaughy lost his mother to drugs. He lost his siblings to Michigan’s foster care system.

Split up after their mother's death, McGaughy and his siblings barely know each other today.

The 38-year-old Detroit barber was afraid the same would happen to his son and daughter after their mother got into trouble with Michigan’s Children’s Protective Services. The court wouldn’t place his kids with him because he lacked legal custody over them, though he’d always been a part of their lives…

McGaughy got no help from the state agency legally required to do all it can to keep families together, because the Michigan Department of Health & Human Services doesn’t deal with custody paperwork.

As I said, that’s weird. After all, how hard would it be to establish paternity and get a court order of custody? The answer is “not very.” McGaughy has been a hands-on dad to his kids and their mother lost possession of them at least temporarily. So why not get a DNA test, present it to a family judge and get an order of custody? It’s simple enough, but DHHS refused to even try.

As a practical matter, that means they’re opting for foster care over father care, an act we’ve seen before. A 2006 report by the Urban Institute showed that’s what happens over half the time when a mother loses her kids due to abuse or neglect. Lawyers working in the Michigan system know the score.

For most parents fighting CPS in court, "the system is really designed for them to lose,” said Liisa Speaker, a Lansing attorney who represents parents at the Michigan Court of Appeals.

How so? The answer is a familiar one – lack of funding. Indigent parents, who make up a large percentage of those before juvenile courts, are entitled to court-appointed lawyers, but, just like CPS caseworkers, they’re too overworked and underpaid to do their clients much good.

[McGaughy] got no help from the publicly funded defense that state law guarantees him. His court-appointed lawyer showed up the first day of his case and never showed up again…

In Eaton County, for example, lawyers are paid $40 an hour to represent parents at the Court of Appeals, a fraction of what they can make on the divorce and custody cases they handle in private practice, and their pay is capped at $800 per case…

The result: A 2009 report from the American Bar Association, the only statewide assessment, described parents' attorneys who rarely meet clients before their first court appearance, rarely perform research or advocacy outside of the courtroom, and are so overburdened with cases they invest little time in any of them.

In other words, parents targeted by CPS go from a caseworker who’s too overworked and underpaid to do an adequate job of figuring out if a child is at risk or not, to a lawyer who’s too overworked and underpaid to do an adequate job of representing them in court. I’m tempted to say that it’s a system that’s designed for parents to lose, but Attorney Liisa Speaker already did.

Fortunately, in Detroit and Flint, there are a couple of organizations outside the system that are there to help parents navigate CPS and the courts.

McGaughy’s family was saved by the Detroit Center for Family Advocacy, a small agency that prevents foster care in nearly 90% of its cases by offering parents targeted legal help and social work that costs a fraction of what taxpayers spend on foster care..

Like the DCFA in Detroit, [Tiffany] Stachiw is providing Genesee County parents targeted social work beyond what the state can or will offer. She's part of a pilot program that has essentially doubled the reunification rate there…

“The way the system is set up, it makes it hard for the (state) worker or the parent to succeed,” said Judge Kay Behm, the Genesee County judge overseeing the pilot program. “This is an answer to the systemic problem.”

Behm said Stachiw “frees up my attorneys to be attorneys.” At DCFA, staff attorneys help parents with “collateral legal issues” that make judges hesitant to place kids with their relatives. They may file personal protection orders against abusive spouses, take legal action against slumlords, or deal with outstanding arrest warrants.

Stachiw’s organization and the DCFA aren’t funded by the state, but by private philanthropy like the Annie E. Casey Foundation. They provide the type of services child welfare agencies should, but too often don’t. I suspect they don’t in part because of that conflict of interest I mentioned earlier. Obviously, organizations like the DCFA don’t have that problem. They’re there to help parents keep their families together and nothing else. Unsurprisingly, they’re pretty good at it.

And, as I’ve said many times before, family continuity is far less expensive for states than is foster care.

Nearly seven in 10 of Stachiw’s cases ended in reunification, for example, compared to 32% of cases without her help. Her cases closed faster. And, based on the number of kids in foster care and what the Legislature set aside just for foster care payments, keeping 18 kids with their parents could cover Stachiw's $260,000 five-year budget.

By any rational measure, the state should be funding organizations like Stachiw’s and the DCFA. They work too well and cost too little not to.

Plus, I suspect they provide another benefit. The article points out that one of the problems with the court system is that parents often don’t cooperate.

Attorneys, for their part, said they’re often stymied by the parents themselves: Letters to clients are returned to sender, phone calls go unanswered, and mom or dad are absent from court.

“That’s what really bothers me, is when you have a child that has already been taken away from you, and you don’t have that sense of responsibility,” said William Metros, a Bath lawyer who’s represented both parents and kids for 20 years.

I’m sure that’s all true, but I also wonder why it is. My suspicion is that those parents know all too well that the deck is stacked against them, that it’s “designed for them to lose.” Given that, why bother responding to a lawyer who doesn’t want your case because it pays him too little and won’t even meet you until your court date? It’s an exercise in futility the parents likely know all too well.

By contrast, the DCFA and Stachiw’s organization do one thing and to it well; they offer the services needed to keep families together. My guess is that they have far less problem with parents ignoring them because they’re understood to be outside the system that’s set up for parents to lose their kids.

That’s just a guess on my part, but something has to explain their success.

Again, kudos to the Livingston Daily for a fine and informative article.

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