Shame on U.S. – Our Federal Child Welfare System is a National Disgrace

In the world of child welfare, there is a lot of good happening.  We have good people with good hearts working hard to keep children protected from abuse and neglect.  We have hard working individuals who put in hours and hours to make sure children who have been abused and neglect are able to live in safer environments and experience better outcomes than they would otherwise see.  We have policy advocates working diligently to inform evidence-based policy reforms.  And we have representatives in office pushing for laws that will continue to improve the child protective system.  All of this good has led to better outcomes for some children but, unfortunately, there are still tens of thousands of children across the country falling through the cracks the size of the Grand Canyon.

So, the question remains….why does our system fall so far short?  Why do so many of these children have outcomes including PTSD, unemployment, homelessness, sex trafficking victimization and imprisonment at rates far above any other group?  Why do we keep seeing headlines about a broken system, a system that repeatedly allows children to die due to abuse and neglect even after local child protective services have been alerted to their precarious state?  It’s a national disgrace.

The answer is not simple and has multiple layers.  Sure there are some bad actors out there.  Additionally, the child protective system is woefully underfunded (or at a minimum inappropriately funded).  But the answer can also be seen when you look at our federal child welfare structure.  Every state in the union accepts money (totaling billions of dollars) from our federal government in exchange for agreeing to follow federal requirements in administering the State’s child welfare system.  This places the federal government as the backbone of our child welfare system so it is worthwhile to take a look at the glaring holes that exist in our policy and the enforcement of that policy.

In a brand new study, Shame on U.S., the Children’s Advocacy Institute uses the federal government’s own internal documents as the basis to criticize all three branches of the federal government for being derelict in their duties to the most vulnerable children in our nation.  States are consistently failing to protect abused and neglected children but the Department of Health and Human Services (HHS) rarely exercises its oversight powers to ensure state compliance with federal mandates – essentially becoming the states’ complicit partner. HHS often takes on a passive monitor role, allowing states to self-certify compliance and set lower standards and performance expectations for themselves — all of which allow glaring inadequacies to go unabated.  In many instances, private citizens have been forced to turn to the courts to seek California’s compliance with federal child welfare laws but federal courts have been reluctant to find that federal laws allow aggrieved children and families a private right to sue.  And, unfortunately, Congress has shown little appetite to address these issues by plugging the holes where the executive and judicial branches are dropping the ball or failing to act.  This completes a trifecta of inertia and neglect and often leaves advocates, and more importantly the children they aim to protect, spinning in a circular trap.

Shame on U.S. connects all these dots for the first time, holding all three branches accountable, pointing out their inter-related failures and the critical need to cure these deficiencies.  There are concrete action steps that can be taken by each branch to mitigate the current harm.

HHS must:

• Toughen its oversight and enforcement activities to ensure that each state operates its child welfare programs consistent with federal law, and HHS must impose serious consequences when states fall short;
• Revise its evaluation program to end the process that allows failing states to meet a compromised set of lowered expectations;
• Utilize its rulemaking authority in a more robust manner with regard to the interpretation of federal child welfare laws. Regulations are enforceable. Anything less is not.

Congress needs to:

• Provide clear private remedies for children within all federal child welfare statutes, to enable private litigants to seek judicial recourse when violations occur;
• Repeal or revise current law to ensure that all foster children are treated equally without regard to their economic status, that states comply with all aspects of all child welfare laws or suffer real consequences, and that HHS plays an active and vigilant role in ensuring state compliance via monitoring and enforcement activities;
• Eliminate the “look back” provision that makes a child’s eligibility for federal foster care funds dependent on whether the child’s family would have qualified for AFDC in 1996. It is arcane, primitive, and hurts children and families;
• Impose consequences on HHS for failing to follow through with its oversight and enforcement responsibilities;
• Restore and reinforce funding for child welfare programs at levels that ensure an effective child welfare system, enact comprehensive child welfare finance reform to address a wide range of problems — such as a complex mix of mandatory and discretionary funding that results in haphazard payments to states, swaths of uncoordinated funding from disparate sources with inconsistent mandates; a host of unfunded mandates; and a dearth of accountability for the money spent by the states.

The federal judiciary should:

• Acknowledge its role as a check and balance to lax executive branch enforcement of child welfare laws, and resolve any ambiguity in federal law as to whether children and families have a private right of action in their favor;
• Ensure that states entering into consent decrees bring their child welfare systems into compliance with federal law in a more timely manner than is currently the case.

Support for these changes should cross political party borders.  The children these policies are designed to protect are, in a very real sense, our children.  Our representatives have crafted laws allowing for the removal of these children from their parents.  Our government then steps in and takes these children with the understanding that we, as a system, can protect and raise these children better than their parents can.  Leaving these gaping holes in our child protective system is a true national disgrace and each day that passes while we allow them to remain – Shame on U.S.

You can find the report at http://www.caichildlaw.org/Shame_on_US.htm

Author: Christina Riehl, Senior Staff Attorney at CAI 

Urgent Memo

URGENT MEMORANDUM
JUNE 11, 2014

TO:         CALIFORNIA’S SENATORS AND ASSEMBLY MEMBERS
FROM:   ONE OF YOUR 60,000 FOSTER CHILDREN
RE:         PLEASE!

Imagine if one of your legislative staffers was assigned to work on more than 300 bills … in one year. Imagine over 300 bill binders in your staffer’s office. Impossible, right?

My lawyer – the only adult in my life who is has the legal duty to make sure the laws you pass actually benefit me, the one adult in my life with a duty just to me – she has a case load of over 300 children like me, more than twice what the Judicial Council says is the maximum possible case load.

This is what such a case load looks like. My whole life and future is somewhere in these files.

Senators, Assembly members, you by force of law have separated me from my parents. I am now being raised within a bureaucracy. I am being solicited by pimps; about half of sexually trafficked girls are right now in foster care with me. There is a good chance I will be homeless when I age out. I am far more likely to end up in prison than other youth. Odds are, I will not graduate from a four-year college.

Respectfully, last night you found money for many things but you decided to take away my voice, my champion. You took away my hope.

Please, I beg of you. Please reconsider. I am your child.

____________

If you would like to do something to help ensure California’s Foster Children have access to the effective representation they need, CONTACT GOVERNOR BROWN’s OFFICE and tell him that foster youth need adequate attorney representation. Dependency attorney caseloads must be reduced. 

Is the Constitution Merely A Protective Wall vis-à-vis the State? What About One Affirmative Duty to our Children As a Part of that Document?

                  Little Johnny was 11 years old and his homeless mother had his five year old younger sister to worry about.  So she left him on a street corner in Ocean Beach, a neighborhood in San Diego, California.  Johnny looked for his Mom for four days before he was picked up by social workers.  During that time he scrounged odd jobs — including conning a restaurant manager into letting him wash dishes three hours a night.  He had earned just over $135.  When he was picked up she had every penny in his pockets, confining himself to one meal at the restaurant and provided by it, because “Mom needs it.”  Johnny is a bright-eyed boy with above average intelligence.  But he has a slight stoop due to a correctable bone malformation.  His teeth have painful cavities.  And he has not been in school for two years.  He is a microcosm of child poverty in the United States — a child with strong potential and admirable character but with health problems, an educational deficit, and likely relegation either to group home foster care or back to the streets.  Regrettably, Johnny S. is not unique.  Indeed, he lives in our wealthiest state and until gathered up, was sleeping under bushes by the beach, in the shadows of $5 million homes.

Over the past two decades, child poverty has been fluctuating between 10% to 20% of the population, with an overall upward trend.   The rate declined somewhat during the late 1990s, but are now trending back up.  And it is happening in the context of a now limited and reduced welfare-reform safety net; (b)  “severe poverty” (income under one-half of the federal poverty line) has increased but is not precisely measured — a problem Johnny S. represents; and (c) children in large numbers are living below or near the poverty line.  This last grouping now represents well over 37% of all American children, 42% of America’s infants and toddlers,  58% of her African-American children, and 62% of her Latino children.  ( See Reports of the National Center for Children in Poverty, Columbia University, www.nccp.org).

Child advocates are concerned about both ends of this spectrum – the severe poverty portending permanent damage, and the imminent creation of a large third-world underclass of  intractable poverty.  The latter concern is reflected in overall increasing income disparities, with the upper 1% of Americans now earning as much as the bottom 38% combined.  And the concern is underlined by barriers to upward mobility driven not only by childhood poverty, but by preclusive real estate (and rent) inflation; growing energy, gasoline and health care costs, and little increase in higher education capacity (including community college and technical training)  most will need for employment in the international economic labor niche of the United States.  This effective contraction is joined by many years of tuition increases well above inflation.  And impediments to mobility for these young include unprecedented economic solicitude for older adults.  While the federal budget deficit appears to be laudably in decline, it is still quite high by recent historical records.   Add to this sum more ominous Social Security and Medicare obligations — that expert economists now project over the next 70 years to reach well over $40 trillion,  $120,000 for each child and youth obligated to pay for it for the children now being born.  And that does not include the still formidable federal deficit, nor the surprisingly high public employee pension and medical coverage costs that have plagued Southern Europe and also threaten us.  Here is the problem:  Today’s liberals actually believe the pop song lyric “Money for Free and Chicks for Nothing.”   The world will manage later on.   Money will rain down the road.  That is not how it works.  Nor is the trend likely to improve given the power of the elderly politically, rather, the more likely future will be more subsidized operations and medicines to extend life by weeks or days, and higher social security benefits for more people.   Child advocates increasingly cite our unique cross-generational taking:   Instead of the longstanding American tradition of older adults investing in the young (particularly in opportunity for the impoverished), we are burdening them with our unprecedented debts and future costs.

Who are these children living near or below the poverty line?  What are the causes of their poverty?  What legal and societal remedies are available to give them realistic opportunity to advance?

Contrary to public perception, the parents of impoverished children are not consuming beer in front of soap operas — engaged in what some call “welfare as a way of life.”  The data reveal that 56% of these low-income families have at least one full time working parent; 28% work part time and only 16% are unemployed — many of whom would be willing to work if employment were available (id.).    However, the single most striking variable underlying child poverty is single-parenthood – both from divorce and unwed births — the latter have risen over the last thirty years from below 10% of all births to over 30%.  And contrary to the common view, these births are not to teenagers, the vast majority are to adult women.  Paternal support for these children is minimal, with average payments received amounting to less than $35 per month per child, and almost half of that goes not to families but to repay state and federal governments for welfare payments.  (See Chapter 2, California Children’s Budget 2004-05, Children’s Advocacy Institute at www.caichildlaw.org).   Most of the children in these unwed families live below the poverty line, and perhaps the most remarkable number from the U.S Census Population Survey reports is the difference between the median income of a female single head of household with two or more young children (about $11,000 in annual income), versus the median for those children in a family with a married couple (well over $50,000) (id.)   These numbers have grown even more stark over the past 8 years.

The conundrum for Johnny S. is the need for two incomes to support high rents and other rising costs of living.  His mother is caught between the rock of child care obligations for her children (which she either provides or finds $5,000 per child to finance) and the hard place of a single wage earner unlikely to net much more than her child care costs for two or more children.  Current federal policy makes the hard place harder because she is limited to 60 months of federal help (Temporary Aid to Needy Families) — and even if working part-time is given no credit for those months of income where she works less than 32 hours.  Remarkably, the Bush administration currently proposes a 40-hour minimum work week for such parents, with each month of full-time shortfall generating possible sanction — including the 60-month lifetime cut-off.

As discussed, child poverty involves both private decisions and public disinvestment.   Hence, the causes as cited by commentators tend to turn on their respective political leanings,  with conservatives citing reproductive irresponsibility, sexual license, lack of paternal commitment, as well as deficits and unfair burdens imposed on the young by the old and limiting their future aspirations.  Liberals cite reduction of the safety net, a minimum wage that is not adjusted to inflation and has declined to below the poverty level for parents of two or more children, and education disinvestment that jeopardizes future employability for an impoverished class.   Is it possible that both are correct?

According to many child advocates, the problem facing children is the truce silently in force between these traditional political antagonists.  Each appears to have surrendered its agenda favorable to impoverished children in return for the surrender of the other’s.   Hence, popular culture now purveys with impunity the notion that single parenthood is simply a different and somehow charming choice… with those dozens of sit-com and other adult-models (from Rachel on Friends to Roz on Frasier and many others) suffering no financial repercussions, child care dilemmas, or worries.  It is far beyond the old sitcom character of Murphy Brown.  Indeed, our fantasy parents in the media often do not seem to work for a living but the rent is magically paid.  No male appears to pay child support, nor does any child appear to need it.  Rather, our media flood us with sexual stimulation and commendation without apparent negative childbirth consequences, replete with cialis and viagra ads for hours of male hardening — while hypocritically eschewing condom ads.  Child advocates contend that for their part, liberal adults have surrendered (or been overborne) in the direction of momentous public disinvestment in children, especially impoverished children – with safety net support and education opportunity suffering the largest cuts.   And child advocates complain that both adult political groupings (although purportedly in “deep division”) have conspired to violate through deficits and huge obligations to the elderly the one pact always drawn in favor of children – that adults do not take from their children, but give to them.

So if these complaints have merit, what is the answer?   One prescription is to reverse the trade-off between private license and child disinvestment into the opposite proposition, one demanded from the body politic.   The Honorable Charles D. Gill has long advanced the public commitment part of it in a proposed constitutional amendment (Essay on the Status of the American Child — 2000 AD: Chattel or Constitutionally Protected Child-Citizen?, NACC Children’s Law Manual – 1998, at 337).  Our constitution is oriented  to inhibit the coercive power of the state vis-a-vis private, individual liberties.  But the constitutions of most developed nations also interpose some affirmative obligations on the state — obligations which need not impede checks on state coercion.  Similarly, the United Nations Convention on the Rights of the Child, now signed and ratified by every nation except the United States and Somalia, posit some minimal affirmative obligations to our children.  Such a compact may properly specify only those obligations that are clearly commended as a common floor: That our children will not be homeless, will receive adequate care and nutrition to develop healthy brains, will have minimal health coverage, and educational opportunity so they may provide for themselves and their children in turn.   What is the opposition to such a standard, spelled out with sufficient specificity to be enforceable?  Is it that we, unlike our less affluent contemporaries in Europe, cannot afford it?

We reserve for our constitution measures that may be politically unpopular but are a consensus “rule of the game” underlying our society.  Although denied “suspect class” status in equal protection cases, what group — in fact — is more politically impotent than impoverished children?  And what commitment do we have more basic than this one?

Would support for such a formalized pledge benefit from a cultural sea change that private decisions to have children warrant the preparation and respect that the miracle of childbirth implies?    That it include the simple and minimal obligation of parents simply to intend a child, and of a father to provide for his children?  Assume such a commitment were an acknowledged part of our culture, and became as “politically incorrect” to transgress as would an insult to a homosexual or a wheel-chair confined adult.  What would be the prospects for such a constitutional commitment, and to child investment in general, in such an altered environment?

One need not have a long conversation with Johnny S. to appreciate the merits of both a constitutional amendment and a cultural commitment to such children.

The author: Robert C. Fellmeth, is the Price Professor of Public Interest Law, University of San Diego School of Law

Congressional Priorities – Corporations Over Abused and Neglected Children?

 

Where are our priorities?  If you look at what is happening in Congress, you will be reminded (again) that they are in the wrong spot!  Last week on Tuesday, April 29^th, the House Ways and Means Committee convened and adopted seven different bills.  Six of the seven addressed the tax code and extended certain business-related tax deductions.  These six tax bills cost approximately $310 billion over ten years and were approved by the Committee without any requirement that the bills show an offset of cost savings.

Then, there was the seventh bill, the Preventing Sex Trafficking and Improving Opportunities for Youth in Foster Care Act (HR 4058). This is the bill that brought my attention to what was going on in our Capitol on a seemingly random Tuesday in April.  This bill was the only bill addressed that day that did not address the tax code AND it was the only bill that required at least some of its costs be offset.

To reiterate and make clear – our government could find billions of dollars to extend tax breaks to businesses, but, when trying to spend a few million dollars to try to help kids that are abused and neglected, those advocating for the change are going to have to find a way to pay for it.  What kind of priority is that?  What does that say about us?  If the saying, “put your money where your mouth is” holds, true, I’m hearing our Congress say we care way more about helping businesses than we do about helping the most vulnerable in our society.  Is that true?  I’m getting sick just writing it.

Certainly our current cast of characters in Congress would tell us that there is an offset of fiscal benefits to the economy such as more jobs and more taxes coming in from providing businesses with tax breaks.  There is likely some truth to that.  But $310 billion worth of benefits over 10 years?  I’m not buying it.  And, let’s compare that to what was argued over in HR 4058.  Before it could pass, a section of HR 4058 had to be removed because it was projected to cost approximately $12 million over the same 10-year time period. The section would have required state child welfare agencies provide a young person leaving foster care with a Social Security card, birth certificate, health information and in some cases a bank account. Wouldn’t providing youth the appropriate documentation and support upon leaving care lead to better education and housing outcomes for kids and ultimately more of these youth working and paying taxes too?

The way these seven bills played out highlights the winners and losers on Capitol Hill.  It is a reflection of who is in charge of the House and where their priorities stand.  I choose not to stand quietly and to instead put voice to my concern – our children are the most valuable asset to our country.  Let’s treat them that way!

Author: Christina Riehl is a Senior Staff Attorney at the Children’s Advocacy Institute.

Commission to Eliminate Child Abuse and Neglect Fatalities: First Public Meeting

On February 24, the Commission to Eliminate Child Abuse and Neglect Fatalities, a committee established by the Protect Our Kids Act of 2012, will hold its first public hearing. To attend in person participants needed to RSVP by last Friday, February 14 but for individuals that cannot attend there is a call-in phone number at 877-939-8175, with the meeting ID number 3067305 (push # when prompted for Attendee ID).

In the last hours of the 112th Congress on January 2, 2013 the Senate approved the Protect Our Kids Act, (HR 6655). The bill establishes a commission to examine child deaths in the United States. The legislation was being championed by Congressman Lloyd Doggett (D-TX) and he was later joined by the Chairman of the House Ways and Means Committee, Congressman David Camp (R-MI). The original bill was introduced by Senator John Kerry (D-MA) (S 1894) in the Senate. The commission has 12 members. The President selected six of the members and the House and Senate leadership each appointed three members with the majority parties selecting two of the three members. The work of the commission will be paid for by a reallocation of $2 million from the Temporary Assistance for Needy Families (TANF) contingency funds.

President Obama completed the selection process last September when he announced his six selections. The presidential appointees are: Dr. David Sanders, Casey Family Programs, Theresa Martha Covington, the National Center for the Review and Prevention of Child Deaths, Patricia M. Martin, Presiding Judge of the Child Protection Division, Circuit Court of Cook County, Illinois, Michael R. Petit, Every Child Matters Education Fund, Jennifer Rodriguez, Youth Law Center (YLC), Dr. David Rubin, the Perelman School of Medicine at the University of Pennsylvania.

The six congressional members and who selected them are: Wade Horn, Deloitte Consulting by Minority Leader Mitch McConnell, former Congressman Bud Cramer by Minority Leader Nancy Pelosi, Amy Ayoub, Nevada public speaking and presentation skills coach by Majority Leader Harry Reid, Marilyn Bruguier Zimmerman, National Native Children’s Trauma Center by Senator Reid (and Senator Max Baucus), Susan Dreyfus, Alliance for Children and Families, by Speaker John Boehner, and Cassie Bevan, Graduate School of Social Policy and Practice at the University of Pennsylvania by Speaker John Boehner. An expanded biography piece and a link to the legislation is available on the National Child Abuse Coalition website.

The commission’s work includes an examination of:

• best practices in preventing child and youth fatalities that are intentionally caused due to negligence, neglect, or a failure to exercise proper care
• the effectiveness of federal, state, and local policies and systems aimed at collecting accurate and uniform data on child fatalities
• the current barriers to preventing fatalities from child abuse and neglect, and how to improve child welfare outcomes
• trends in demographic and other risk factors that are predictive of or correlated with child maltreatment, such as age of the child, child behavior, family structure, parental stress, and poverty
• methods of prioritizing child abuse and neglect prevention families with the highest need
• methods of improving data collection and utilization, such as increasing interoperability among state and local and other data systems

After working in these areas the Commission is directed to make recommendations in two general areas: reducing child fatalities resulting from abuse and neglect for federal, state, and local agencies, the private sector and nonprofit organizations, including recommendations to implement a comprehensive national strategy, and they are to develop guidelines for the type of information that should be tracked to improve interventions to prevent fatalities from child abuse and neglect.

~ Written by John Sciamanna

Nader’s work is related to many child advocacy themes.   His orientation is toward future interests, and in some ways he marries consumer and child advocacy through his work.   That work has included two themes important to children.  The first is direct work on child safety.  Indeed, the auto safety aspect of his work alone, together with the related achievements of Joan Claybrook, has saved perhaps more children from death and disability than anyone else outside of  Drs. Salk and Sabin.   The important work of Rob Weissman while with Nader saved many lives in underdeveloped nations by making otherwise expensive pharmaceuticals affordable for millions – particularly of benefit to children subject to the AIDS scourge.   His work to inspire the Consumer Product Safety Commission and to stimulate child safety inclusion in FDA studies, including a lifetime of work by Dr. Sid Wolfe of Public Citizen started by Nader are other examples.   Second, he is well aware of the current imbalance in political influence favoring “here and now” profit by those organized around a profit stake in public policy.   His work, in concert with John Richard and Russell Mokhiber, have long shined an ethical light on corporate illegality.   Importantly, corporations properly advance immediate, short term interests (their capital investment that their directors and officers are bound as fiduciaries to protect).  That obvious corporate orientation may often involve long term costs – the amelioration of which is central to child advocacy purpose.     The concern here has been magnified by the regrettable impact of campaign contribution influence from the burgeoning trade, corporate, and other associations (horizontally organized economic interests) who increasingly make up the “stakeholders” now determining public policy.   Their orientation is hardly one of long term impact.   And the regrettable discounting of future effects is perhaps the quintessential concern of child advocacy.   Nader seeks balance —  and the representation of diffuse and future interests rather than the increasingly disproportionate domination of courts, agencies and legislatures by those who have other  foci.

Ralph Nader is now out with a new book: “Told You So” (Seven Stories Press, 2013).   It is a compilation of over 300 weekly columns written by Nader over the last 41 years.  It is not turgid prose, but has a readable diction; each commentary is concise and reviewable in several minutes.  Its warnings are disturbingly prescient, and well illustrate his child, safety and diffuse interest orientation.  This book is a revisit to many of his prior critiques and predictions.

Their short length and direct messaging depart from the style those of us in “academia” publicly respect and try to emulate.  Many of us would be among the first to sneer that a “three page analysis of auto fuel efficiency” is insultingly brief and obviously designed to inflame and not educate.  Indeed, it would require at least 150 pages on a subject using pretentious  passive voice, complex sentences, citations to every factual contention, and, ipso facto, much gratuitous Latin.   But has the world ever changed!  Our students now communicate via Twitter and with incomprehensible acronyms: OMG, please KMN.   In a world borne of books and chapters, it is a task to get my students to think beyond phrases and to actually construct …. paragraphs!  So all of a sudden, these columns read more like in-depth,  thoughtful essays than like the “radical excitations” we may have labeled them in 1975 in order to sniff our dismissal.   And his theme speaks to the future concerns of child advocates.  It is not just global warming the inefficient autos exacerbate, it also raises a seminal ethical issue – to wit, the exhaustion and deprivation from future generations of the earth’s limited assets.

The second feature to the work is related to its title: “Told You So.”   As one who has passed 60 years of life, here is a secret I pass onto my juniors.   During our lives we ideally learn things, and profit from our own failures and the much easier ones to identify (those of others).  And during the course of our life we will warn people about economic trends, cultural changes, and, of course, other people with whom we disagree.  We will predict dire consequences.   And here is something interesting – we may suffer short term memory loss, but we will remember with perfect acuity every single such warning whose message correctly came to pass.  As with yours truly, you will come to believe the following: “I have been right so often in my 68 years, and predicted every calamity that could be predicted, such that I can rightly say ‘I told you so, you idiots.”  You so conclude almost daily as you peruse the newspaper – or, excuse me, the blog postings and tweets, by our omnipresent twits.

Although we do not admit it, there is likely an element of selective memory in such expansive self-congratulations.  “If only they had listened to me, we would not be in any of these fixes – environmental despoilment, educational regression, child disinvestment and debt imposition, and the rest of it.  The damned ads on television are still twice as loud as the damned programming, don’t get me started!”  But in point of fact, we tend to engage in a natural selection of remembrance, recalling perfectly everything that turned out as we warned, and forgetting everything where we were wrong.  And that is what makes the book rather remarkable.  Of course, there may be a number of columns not included because the predictions failed to materialize, but even taking that into account, you do find yourself mumbling after reading each column: “Okay, he was right on that one.”  But you have to be predictive sometimes, especially if you are hypercritical of government and business.  I mean, both are sitting ducks, often making horrible mistakes in concert.   But what is remarkable here is the breadth, degree and incidence of accurate prediction.  Most interesting are the oldest columns from the 1970s and 80s.  This is a book best started from the back where the oldest columns are located.  My Lord.  “Crime in the Suites,” “Nuclear Power Plant Risks,” “This Land is Your Land,” “Subsidizing the Banks,” the “Student Loan Scandal,” and my personal favorite: “Gobbledygook is Growing.”

Most of what is written could be repeated today, with a tag line after many sentences, uttered in the voice of the Sheldon Cooper character on the Big Bang Theory:  “Did you read that, idiot?  Did I not tell you so?  Did I not?  Did I not?  Hmmm?”

Later columns warn us either well before or during the early stages of:  the savings and loan debacle, the Enron energy scam, the Iraq war and many other problematical policies of the past two decades.  He also predicts in repeated columns the derivative gambling fiasco of this decade (let’s gamble a trillion dollars, and heads I win –  tails you lose).  With such a record, even if there is some selectivity, the author may earn a measure of credibility, such that what he is saying now may warrant more attention than the time we shall devote to, say, posting our vacation photos online to win the envy of our 460 “friends.”

And it is most remarkable that so many of his messages have had and will have future impacts – impacts that form the primary crucible for child advocacy.   You should read this book, and click here to order  it from Amazon.   If you ignore this suggestion and do not do so, and thusly miss one of its prescient warnings,  you can count on me to tell you that I told you so.

Author: Professor Robert C. Fellmeth
Price Professor of Public Interest Law, University of San Diego School of Law

How Maryland robs its most vulnerable children

Try this on for size: The agency overseeing foster care has been appropriating foster children’s assets – orphaned children’s survivor benefits, for example – and handing them over to the state.

There’s more: Not only does this agency take assets from children, but Governor O’Malley and the head of the Maryland Department of Human Resources encourage the practice, going so far as to hire a private company to help obtain Social Security disability (SSI) and survivor benefits (SSDI) from foster children to use as government revenue.

Children’s social security benefits are intended to serve the children’s best interests. But our foster care agency is targeting abused and neglected children who are disabled or have dead parents, applying for social security benefits on their behalf – and then diverting the money to state coffers.  The practice has been occurring for years, but in secret. Children and their lawyers are not notified.

Despite litigation regarding the practice, Maryland hired a private contractor – MAXIMUS (tag line: “Helping Government Serve the People”) – to help broaden these efforts to “maximize revenue gain.” Records obtained by Public Information Act request expose the following:

• MAXIMUS recommendations “designed to promote the identification of and subsequent acquisition of all SSI/SSDI benefits for all qualifying foster care children;”
• MAXIMUS “encourage[s] caseworkers to refer any child suspected from suffering from any illness – from a quadriplegic to ADHA [sic];”
• A goal to increase the number of Maryland foster children determined disabled for Social Security benefits from the current 2% to 15-20%;
• Plans to convert up to $9 million annually in resulting children’s benefits to government revenue;
• And a warning that Maryland may be double dipping by possibly obtaining foster children’s assets and other funds to reimburse itself for state costs more than once.

Two foster children challenged the agency practice, and their cases worked through the Maryland courts.  I represented Alex, and the Legal Aid Bureau represented Ryan.  Alex entered foster care at age 12, when his mother died. His father died shortly thereafter. Ryan entered foster care at age 9, and then both of his parents died.  Both boys were shifted between numerous group homes and foster care placements. The boys never knew their parents left them with survivor benefits, because the foster care agency never told them – and never told them it applied for their benefits, that it became representative payee to gain control over their money, or that it routed their money into state coffers. Both boys left foster care penniless.

The Court of Appeals denied hearing Alex’s appeal, but it granted review of Ryan’s case, and I filed an amicus brief on behalf of several advocates. The Court just issued a ruling in In re Ryan W., concluding Maryland violated Ryan’s constitutional due process rights by applying for and taking his funds without notifying him or his lawyer. This is an important ruling for foster children’s rights. If children can find another representative payee, the state can no longer force them to hand over their money.

But unfortunately, the Court upheld the state’s argument that when it serves as payee it can divert children’s benefits to repay state costs and thus bolster government revenue – even though children have no debt obligation to pay for their own foster care.  This part of the decision is incorrect in my view. But even if it’s correct, the Court recognizes that Maryland has discretion as representative payee to consider the best use of the children’s money.

So, since the state has discretion, I posit this question: what should our Governor do? If our state and foster care agency need more revenue, is the answer really to take resources from the very children this agency exists to serve?

Other states do it too, but that doesn’t make it right.

Consider how the children are fairing: Twice as many foster children suffer from post traumatic stress disorder as Iraq war veterans; over one-third of children aging out of foster care never graduated from high school; only 3 percent complete college; less than half find employment; 85 percent suffer from mental health issues; over one-third are homeless; and almost 75 percent of males become incarcerated by age 26.

A better approach would use children’s money to actually help the children, such as conserving the children’s funds in individualized plans to help their specialized needs and to help them achieve independence once they leave foster care.

About the Author: Daniel L. Hatcher is a professor of law in the University of Baltimore’s Civil Advocacy Clinic, reachable at dhatcher@ubalt.edu.

This article was originally published in the Baltimore Sun on October 14, 2013, and can be accessed here.

It’s Just Kindergarten – Is Attendance Really That Important?

Many families do not prioritize attendance because they may not appreciate the high marginal value of every school day, the dangers elementary school truancy and absenteeism create for their child’s long term success and opportunities, and that school attendance is legally required.  However, elementary school provides a brief window in which to teach children the fundamental skills they will need to lead productive and happy lives.  It is where we diagnose a child for vision, hearing or learning impairments.  Above all, it is where we build a foundation for academic success and set children on a path to good health and economic security.

Late last month, California’s Attorney General, Kamala D. Harris released a new report, “In School and On Track, The Attorney General’s 2013 Report on California’s Elementary School Truancy and Absenteeism Crisis.”  The Attorney General announced that this is only the first of several reports.  Because the link between elementary school truancy rates can be so closely correlated with high school dropout rates and crime rates, California’s Attorney General’s Office will produce annual reports tracking truancy and chronic absence in elementary schools across the state.  Many of the statistics of the Report are simply jaw-dropping.  For example, did you know that high school dropouts cost California $46 billion each year?  A summary of the report’s key findings is below:

School Budget Impact of Truancy

• School districts lose $1.4 billion per year based on student absences because school funding is based on student attendance rates.
• San Diego County Schools lost almost $95 million in the 2010-2011 school year due to absenteeism.  That equates to $211.20 per student that was lost over the course of the year.

Dangers Truancy Creates for Your Child

• Truancy (being absent or tardy by more than 30 minutes without a valid excuse on 3 occasions in a school year), especially among elementary school students has long-term negative effects.
• Students who miss school at an early age will fall behind their classmates.  Students who miss a lot of school in the early years are likely to become disengaged from their studies and struggle academically, develop behavior problems and, in later years, to drop out of school entirely.
• First grade students with 9 or more absences are two times more likely to drop out of high school than their peers who attend school regularly.
• For low-income elementary students who have already  missed 5 days of school, each additional school day missed decreased the student’s chance of graduating by 7%.
• High School dropouts can be predicted with 66% accuracy based on attendance data in the third grade.
• According to one study comparing the scores of more than 600 kindergarten students on a school readiness exam and a 3^rd grade reading test, students who arrived at school academically ready to learn but then missed 10% of their kindergarten and first grade years, scored an average of 60 points below similar students with good attendance on 3^rd grade reading tests.  In math, the gap was nearly 100 points on tests with 400 points possible.
• Increasing graduation rates in California by 10% would result in 50,000 additional graduates annually, 500 murders prevented each year, and 20,000 aggravated assaults prevented each year.

Truancy is Against the Law

• Truancy is against the law.  California’s Compulsory Education Law requires every child from the age of 6 to 18 to be in school – on time, every day.
• Because of the long-term negative effects of elementary school truancy, there is currently a statewide push for prosecutors to accept referrals for truancy prosecutions of parents when an elementary school child is involved.

About the Author: Christina Riehl is a Senior Staff Attorney in CAI’s San Diego office. She conducts litigation activities; performs research and analysis regarding CAI’s legislative and regulatory policy advocacy; assists in the research and drafting of CAI special reports; and serves as an Educational Representative under appointment by the San Diego Juvenile Court. Before joining CAI, Riehl worked as staff attorney with the Children’s Law Center of Los Angeles, where she represented minor clients in dependency court proceedings. Prior to that, she interned with the Honorable Susan Huguenor, formerly the presiding judge in San Diego Juvenile Court. Riehl is a graduate of the USD School of Law, where she participated in the CAI academic program. 

 

The Emerging Impact of Sequestration on the Nation’s Most Vulnerable Children

On Wednesday, July 24, there was a Budget Summit held in DC by First Focus.  In the Children’s Budget for 2013, child welfare spending took a big hit in programs that attempt to prevent child abuse and keep families unified. The overall budget numbers for the first time give some context to the impact of the sequestration cuts. The human cost is likely immeasurable and invisible to many but in terms of actual spending numbers the report indicates that children now receive less than 8 percent of the federal budget. Since 2010 spending has fallen by $35 billion and when spending is adjusted for inflation it has decreased by 16 percent just since then. Discretionary spending, which is separate from mandatory, entitlement and tax spending and is appropriated each year by congressional action, has declined by 13 percent.

In terms of the child welfare spending;

Title IV-B part 1, Child Welfare Services (CWS) funding is cut to $262 million in this fiscal year down from the total of $280 million in 2012. That reduces CWS to its lowest actual spending level since 1990 when it was funded at $252 million. If that 1990 total had kept pace with inflation it would be more than $427 million. CWS is a flexible fund that can be used for a range of services. In FY 2010 the biggest categories of spending in CWS were:

•  Child protective services –services to prevent and investigate child abuse
•  Family support—to prevent child abuse by supporting the most vulnerable families 
• Reunification services—to help reunify a foster child with his or her family 
• Foster care maintenance—a limited number of states are allowed to use these funds for foster care 

Title IV-B part 2, with the Promoting Safe and Stable Families (PSSF) cut to $387 million in this fiscal year, down from the total of $408 million in 2012. This program, newer than CWS, has had a better financial history. It peaked at $455 million in FY 2007. PSSF is a more complex funding stream as the totals here include $20 million for workforce development, $20 million for substance abuse treatment and $30 million for the state courts. What remains is the funding for the program’s main purposes. In this category total funding was approximately $338 million in 2012 with that being reduced to approximately $321 million for the four main services:

• Family preservation—intensive work for families in crisis to prevent the placement of children into foster care
• Family support—to prevent child abuse by supporting the most vulnerable families 
• Reunification services—to help reunify a foster child with his or her family 
• Adoption promotion and support—to support families that have adopted including providing post adoption services 

The Child Abuse Prevention and Treatment Act (CAPTA) funding is cut to$87 million down from $93 million in 2012. In 2012 state grants were funded at $27 million, discretionary grants were funded at $25 million and community based child abuse prevention grants were funded at $41 million. Funding for the three programs peaked in 2005 when it totaled $111 million. CAPTA includes a number of mandates on state child protective service systems including mandatory reporting of child abuse, legal representation, research and prevention:

• State grants—are intended to fund state child protective services
• Discretionary grants—provide research into child abuse and child maltreatment 
• Community-based child abuse prevention—funds, through various local programs to prevent child maltreatment from occurring 

There are also a number of other child welfare programs that are reduced including the Adoption Incentives fund, the Adoption Opportunities Act, the Abandoned Infant program as well as child abuse programs in other areas of the budget such as funding for the Court Appointed Special Advocate (CASA) program and the Children’s Advocacy Centers for maltreated children.

The entitlement programs including Adoption Assistance, Foster Care and Kinship Care are exempted from the cuts as are entitlement programs adjusted according to state claims based on children in care. A fact not overlooked by those who are concerned about any discussion to convert the entitlement programs into flexible funding block grants.

Authors: Amy Harfeld and John Sciamana

A Call for Childcentric Philosophy and Politics

I have long been a registered Republican, but now find both parties to be unacceptable sources of reliable policy for children and the future they represent.

Both parties, but particularly the Democrats, are amassing unprecedented future obligations for our children and their children, primarily for the care and comfort of my generation — the Boomers.  We are, in contrast to the Greatest Generation of our parents and grandparents – perhaps the most self-centered grouping of adults in American history.  The Social Security benefits we have not paid for, and the Medicare deficit – financing everything from joint replacements to Viagra – portend trillions in future obligation.  The amount in under-funding there, adding in the smaller federal deficit, rises to above $60 trillion within the life of those children now being born.  Merely the interest on that deficit at 5% will be almost half of family income – before other taxes.  But liberals will not talk about it, and even conservatives avoid mentioning the two most costly programs, preferring to blame food stamps or other investments in children that are trivial in amount and have some ethical basis.  Beyond that, liberal ideology favors “top down” bureaucracy, services performed by those with “caseloads” (relegating even foster children to too many institutional caregivers), and dependence on public employee unions.  Add to that the politically correct tolerance for infinite adult license – including abandonment of a child’s simple right to be intended by two people.

At the same time, we have a Republican Party that has forgotten its roots, and now serves as tribalistic defenders of privilege and excess.  They are self-indulgent takers who worship words like “freedom” and stand tall before the flag, but forget that those hitting the beaches at Iwo Jima were sacrificing for all of us.  Of course we best respect individuality (which makes their lemming-like group obeisance to each other rather ironic), but we also know we are a community.  A lot of people, strangers, and including those Marines through history, have contributed to where we are now.  And yet we don’t pay attention to the children the state seizes for their protection,we don’t invest in the children of all of us, and we even go so far as to defend a system of health care that means if a child is ill, an uncovered family risks likely bankruptcy if she spends more than a few days in a hospital.  My Party has become an ignorami tool of monied interests, and is at least equally irresponsible.

Conservatives do favor use of the market to allocate resources efficiently, recognizing it as a presumptive means of efficiency and of “bottom up” economic democracy.   On the other hand, current conservatives fail to heed their own economic theorists who identified market flaws needing correction, including natural monopolies, imperfect information, and external costs. As to the last, these costs occur where the market fails to assess damages imposed on others, such as a product that causes sickness or a manufacturer who pollutes to ruin fishing downstream.   The market is an important construct, but it is fashioned by humans and influenced by rules of liability and mankind created inequities.  It is not a deity. Indeed, the classic Renaissance satire of Candide by Voltaire skewers the “Optimist” philosophy that all that happens is perfect because God controls all and wills it.  Neo-conservatives largely replace “deity” with “the happenstance of the current market” in their equally vulnerable worldview.  The market is a useful human construct with rules about who is liable for what costs that the market may or may not assess by discretionary decision, e.g., rules of liability, public assessments, criminal prohibition or any number of influence-factors.   Such “external costs” can include health consequences that are caused by a product’s use, environmental harm to others or other costs to be borne by those in the future.  Environmental depredations, now at unprecedented levels, the consumption of limited resources and other policies that sacrifice those in the future for present comfort – these are costs that may be prevented through straight prohibition or other adjustments not requiring “licensure regulation” or other “prior restraint” intervention.

They may also be addressed through fees.  These amply supplement the market while retaining its efficiency features.  Such fees would be set to measure the costs of denial or harm to future generations.  They should start low to allow recovery of existing sunk cost investment, but should increase substantially in an advance-noticed format as time passes to allow for the efficient reallocation. This mechanism recognizes future costs and internalizes them through market forces efficiently amended (or corrected) by those assessments.  The revenues from those fees could then ameliorate the harm — while the external cost continues to accrue damage, and to stimulate approaches that are less costly to those who follow us.  Accordingly, global warming and the consumption of the earth’s limited supply of carbon could be ameliorated through an international carbon fee starting low, but accelerating in amount as years pass. The revenue would be used for solar power or other external benefit subsidy, or to ameliorate the damage from removal and damage during the interim period where damaging exploitation or production continues.

The lodestar for all of us is the supervening obligation owed to those who follow us in the millennia to come.   It is interesting that we all have such acuity in seeing the selfishness, irrationality and cruelty of our predecessors (whether the inquisition, slavery or unjustified wars).  Our point of view in making systemic decisions should be as follows:  What will be the future view of it and of us in five or more centuries.  Our founders risked much for us.  How will those who follow us in 250 years view our record?  We have been impressive in communications, transportation and computer technology.   But that may not be the crucible of future ethical judgment.

Exacerbating the child-friendly reform of American public policy is the influence of corporations and the decline of democracy.  In particular, Citizens United   egregiously equates these statutorily created “persons” with human persons in their political right entitlement.  But corporations consist of collections of capital devoted to some invested purpose, and with officers and lobbyists necessarily (and properly) serving the present financial interests of stockholders funding it.   Such a focus is not itself a criticism – that is what they are intended to do.  But that persona is very different than that of a human directed democracy.  The latter is properly controlled by individuals who are concerned about diffuse and future interests. The corporation necessarily seeks to “free ride” for maximum profit, and to take exhaustible resources or impose costs on others or on the future—particularly where it serves the protection of the capital investment that is its necessary lodestar.   That bias is intended and may manifest much advantage in productivity.  But elevating such entities to the enhanced political rights of humans pushes the needle radically in a direction against those who are unorganized and who depend upon future commitment.  Those interests were already at risk before the elevation of corporations for purposes of political contribution and influence.  Indeed, CAI has been lobbying for children for 23 years in Sacramento and in D.C., and we know that legislative bodies are increasingly passive.  Even the language of modern civics reflects the change: the “sponsors” of legislation are no longer the legislators introducing it, but the interest groups actually writing it.  And the negotiations are undertaken by “stakeholders.”   Children are often absent.  They provide no votes or campaign money.  They are diffuse and represent future interests, the place you kick the can down the road to. They have few advocates; in fact, the elderly lobby AARP alone spends 25 times as much on lobbying in D.C. as do all child advocates combined.

We have work to do and we face difficult odds when confronted by two parties who have largely abandoned children, except for photo ops and rhetoric.  We need to resurrect a strong sense of ethical imperative to measure all that we do under a primary lens:  What are we passing onto our legatees?

About the author:  Professor Robert C. Fellmeth is a tenured law professor at the University of San Diego (USD) School of Law and is Founder and Executive Director of USD’s Center for Public Interest Law and its Children’s Advocacy Institute. He is the holder of the Price Chair in Public Interest Law at the USD School of Law, one of two such chairs in the nation.