Monthly Archives: July 2012

Child Fatalities and Near Fatalities – Do We Need the Details?

 The Children’s Advocacy Institute (CAI) continues to work tirelessly to shine light on one of our nation’s  biggest tragedies  – child deaths due to abuse or neglect.  As phrased by political cartoonist Nick Anderson, these are “very real weapons of mass destruction.”  But why are the private details of these tragedies important for public consumption?  The short answer is simply that we can learn from them and do better. We need to continue to shout from the rooftops until we see real change to protect our children.

On average, more than 4,000 children are removed from their homes and enter foster care each week.  According to the Annie E. Casey Foundation’s Kids Count Data Center, more than 250,000 children entered foster care in 2010.  Unfortunately, not all removals from a parent’s home are warranted.  The Daily Beast recently reported that in that same year, “nearly 40 percent of children who had been removed from their homes – more than 85,000 children that year – were later returned with no finding of abuse or neglect, according to the Department of Health and Human Services.”

How was it that these children were returned to their homes without a finding of abuse or neglect?  Because when a child is removed, counsel are appointed for the parents, a Guardian ad Litem is appointed for the child, and a series of hearings must occur (including an initial hearing within 48 hours of the child’s initial removal) to assure both that reasonable efforts were made to avoid removal and that reasonable efforts are being made to reunify the child and parents.  There are several checks in place to assure that when a child is removed from her home the removal decision was correctly made.

But what about the children that aren’t removed, and instead are left in their home, perhaps erroneously?  We can’t assume that all non-removals are correctly decided.  Logic and the numbers simply do not bear that out.  Since there’s no system of checks in place for them, we can only hope to learn from their tragic cases after the fact by accessing and analyzing public records.

The U.S. Department of Health and Human Services (DHHS) established a national collection and analysis program on states’ data regarding child abuse and neglect.  States voluntarily submit their own data and it is then used to create annual reports which help better understand child abuse causes, demographics, and the systems assisting children.  As part of this data collection, DHHS looks at child fatalities due to abuse and neglect.  In 2009, 34 states reported their child fatality data.  In those 34 reporting states, nearly one in every eight child fatalities involved children whose families had received family preservation services in the past 5 years.

But it is imperative to go beyond the cases that escalated to the point of receiving services, and beyond states’ self-reports to instead take a look at cases where there were any prior child protective services contact.   CAI requested information from all of California’s 58 counties on fatalities and near fatalities due to child abuse and neglect for the period of July 21, 2006 through December 31, 2006.  During that time period, there were 30 near-fatalities and 53 fatalities reported.  Of the 30 cases of near-fatalities, 63% (19) of the children’s families had a child protective services history and 37% (11) had a child protective services history which CAI identified as substantially related to the reported near fatality.  Of the 53 fatalities, 82% (41) of the children’s families had a child protective services history and 53% (28) had a child protective services history which CAI identified as substantially related to the reported fatality.

By going beyond the self-reported numbers, CAI can see an unfortunate trend where more than three-quarters of all child fatalities due to abuse or neglect involve families with a child protective services history.

While there are checks in place to ensure the propriety of a child’s removal from their home, this doesn’t help the children that are being left in homes where abuse was known to be occurring.  When this happens, there is no systemic check in place to save these children.  These are the cases where our system has failed and where we must step in.

Anecdotal evidence shows that when we learn from these deaths – often because they are reported in the media – positive systemic change can occur.  Reporting of various child deaths in San Diego, Sacramento, and Los Angeles counties have all lead local agencies to revisit and improve their practices with respect to child protection.  When a child’s death to due abuse or neglect occurs, it is imperative to do more than look the other way.

This is why CAI continues to put pressure on states to release all their information related to child abuse and neglect deaths.  The information we learn can often provide great insight into system’s failings and is the only silver lining we can hold on to from these most tragic cases.

CAI files Amicus Memorandum Opposing the Proposed Settlement Agreement in Fraley, et al. v. Facebook

On the eve of a proposed settlement agreement last week in the case of Fraley, et al. v. Facebook, CAI filed an amicus memorandum objecting to the terms and asking the court to deny the settlement.

The case centers around Facebook’s use of “Sponsored Stories” — ads in which the site features a user’s likeness in association with a product, service or Facebook page. Although this usage is outlined in the site’s terms of service, users do not give active permission to be used, and therefore these “Sponsored Stories” violate California statutes prohibiting that practice, the plaintiffs argue.

On the same day CAI filed its memorandum, the judge in the case, U.S. District Court Judge Lucy Koh, recused herself from the case; following her recusal, the hearing at which the court will decide whether or not to approve the settlement was postponed to Aug. 2, 2012.

One of CAI’s objections to the settlement is that it “provides inadequate injunctive relief to the class members, and especially to the sub-class of minors.”  Further, CAI believes that the settlement allows Facebook to continue to violate the California Family Code, which prevents minors from entering into a binding contract, and CAI objects to the proposed language in the settlement in which Facebook acknowledges it will still continue to use these “Sponsored Stories” ads without users permission. The only way for users to opt-out, according to the way the settlement is worded, is to wait until Facebook has used a user’s likeness or name in at least one “Sponsored Story.”

Many analysts have attributed Judge Koh’s decision to recuse herself to the fact that she has ties to many of the charities that are earmarked to receive a slice of the settlement.  In all, 15 charities chosen by Facebook are scheduled to share $10 million of the $20 million settlement.  Koh has ties to at least two of them.

Although there is currently much debate as to the how and why these charities were chosen to receive the cy  pres awards, CAI also objects to the settlement on the grounds that the other $10 million in the settlement is going to the legal team representing the plaintiff class.  In CAI’s view, this is an outrageous amount, considering that in other recent class actions that were litigated over several years and which involved a tremendous amount of discovery, prevailing attorneys received far less in fees.

As CAI stated in its amicus filing, “the stipulated attorneys’ fees are excessive, especially in light of the fact that the class receives no monetary compensation and the minors of the sub-class (and their parents) would continue to have their rights violated.”

You can read a PDF of CAI’s Amicus Memorandum objecting to the settlement in Fraley, et al v. Facebook.

CAI Submits Writ of Certiorari Petition to US Supreme Court

On Wednesday, July 11, 2012 the Children’s Advocacy Institute, together with co-counsel Winston & Strawn, filed a petition with the U.S. Supreme Court asking it to rule on a foster child’s ability to seek relief in federal court.    The petition, known as a Writ of Certiorari, urges the Supreme Court to decide whether it was appropriate for a federal court to refuse to hear a case brought by foster children.

In March of this year, the Ninth Circuit Court of Appeals entered an opinion in the case of E.T. et al., v. Tani Cantil-Sakauye, which basically bars foster children from turning to the federal courts for relief when the state systems designed to protect them from abuse and neglect have failed, often because they are overburdened.

“It is unconscionable” says Robert Fellmeth, Executive Director of the Children’s Advocacy Institute and an attorney on the case.  “It is ridiculous to require foster children to seek redress in the state courts.  Particularly in a case like this where the underlying complaint is that the state courts themselves, and in particular, the State Supreme Court, have let these kids down by not providing them with attorneys who can adequately represent them in their state court proceedings.”

Fellmeth added: “This case represents a categorical abdication – a walkaway from foster kids and their due process and statutory rights. The Ninth Circuit holds, bizarrely, that an action simply to reject 388 kids per attorney as an excessive caseload purportedly cannot even be heard at all, since it represents an ‘intrusion’ into the state court system.”

“But this is why the federal courts exist,” said Fellmeth, “to provide a check when the states engage in egregious, unlawful, unconstitutional state action – including state courts.

Federal courts are often the appropriate forum for seeking redress when systemic failures have harmed foster children, because many aspects of the state systems designed to protect foster children are based on federal requirements.  When state systems are not meeting mandated federal requirements, foster children have in the past been able to turn to federal courts for assistance.

The Ninth Circuit found that because foster children are involved in state court judicial proceedings, a federal court cannot consider any of their claims.  The Ninth Circuit reasoned that if the federal court ruled on the claims of the foster children, it would necessarily “intrude upon the state’s administration of its government, and more specifically, its court system.”

The ruling by the Ninth Circuit purported to build upon previous Supreme Court decisions holding that where a state court is handling a matter, a federal court should not issue a decision that would undermine the validity of the state court decision.  This line of reasoning, referred to as the abstention doctrine, has been read narrowly in some jurisdictions but very broadly in the Second, Fifth, Sixth, Tenth Circuits, and now Ninth Circuits.  This decision in the Ninth Circuit, in fact, is one of the broadest interpretations of the abstention doctrine stretching beyond the Supreme Court’s intent and purpose behind the doctrine and closes the federal court doors to foster children.

“This holding applies and elevates ‘abstention’ – the radical doctrine that whatever the facts or the degree of violation, the state may do what it will.” Fellmeth called the decision “one of the most dangerous self-abnegation opinions in recent decades. It represents the strong empathy lines of judges for their colleagues on the state bench, who are here elevated to “above the law” status, rather than for foster kids who are parented by these state courts and have no other redress.”

The U.S. Supreme Court is expected to rule on whether or not it will hear the case in September of this year.

You can find the filed Petition here:  http://www.caichildlaw.org/Misc/ET_petition_for_certiorari.pdf

CAI Sponsors Bill To Allow Children To Have Three or More Parents

CA SB 1476 Doesn’t Redefine Parent, Rather Allows For More Than Two

A bill that the Children’s Advocacy Institute helped draft and that would allow children to have more than two legal parents is making its way through the California Legislature, and making some national headlines along the way.

The bill, authored by State Senator Mark Leno (D-San Francisco), was inspired by a situation in 2011 in which a girl was placed in foster care instead of being placed with her biological dad, with whom she had a relationship, because he was unable to be recognized as a parent while the girls two legal parents were unavailable to care for her.  Since there was a legal limit of only two parents, the judge in the case was not able to place the little girl in a home that would best serve her best interests.

SB 1476 is drafted to reflect changing family dynamics, such as divorced and re-married parents, certain adoption situations or circumstances where children were born out of wedlock. The bill has currently passed the State Senate and is awaiting a vote in the California Assembly, which should come by August.

“In a perfect world, every child would have two parents, nobody would die, nobody would get divorced,” says CAI director Bob Fellmeth. “But we’re not in a perfect world, and from a child’s point of view, if she has two mommies and one daddy, then as a child advocate you better believe we want all three of them legally equipped to represent that child’s best interests.

Under SB 1476, all parents would have to qualify as a parent under existing legal standards before a judge could consider recognizing them.

The bill recently made national headlines after a Sacramento Bee article highlighted the bill shortly after it was approved by the State Senate.   Local news affiliates picked up the story, and national outlets such as NPR, Fox and The Huffington Post all covered the issue, with even Rush Limbaugh weighing in on the matter.

What Limbaugh and other SB 1476 opponents have done is to look at the bill through the lens of the debate on legalizing same-sex marriage.  However, Leno and CAI continue to be clear that the bill does nothing to change the definition of a parent, but rather seeks only to help judges rule in the best interest of children should they be in a situation in which life’s circumstances have provided them with more than two individuals who love and care for them as a parent.

As Leno told ABC News, the bill is “not touching the definition of a parent under the current law.  When a judge recognizes that a child is likely to find his or her way into foster care and if there is an existing parent who qualifies as a legal parent, why not have the law when it is required to protect the well-being of the child?”

You can submit a letter to show your support of SB 1476.  A sample support letter can be found at:  http://www.caichildlaw.org/Misc/Sample_Support_Letter_SB1476.doc .