Marcia Robinson Lowry
When Marisol was three and one-half years old, she was discharged from foster care and sent to live with her mother, who had placed the child in foster care at birth. Her mother had a history of drug abuse, for which she had been imprisoned. Nothing in her record indicated that she had been rehabilitated.
In sending the child to live with her mother, the New York City child welfare system ignored reports that Marisol had returned from visits prior to discharge unfed and frightened by violence in the home, suggesting that her mother might still be abusing drugs. Instead, authorities applied the system’s current operating principle that all children should be with their biological parents—without any kind of careful evaluation to determine whether this particular parent was able to care for her child, without providing any meaningful services to address the parent’s problems, and without providing necessary supervision and oversight to ensure that the child was safe.
Reports that Marisol was being abused by her mother went uninvestigated, and those concerned were given bland assurances that the child was thriving. But child welfare officials had no idea how she was doing. Fifteen months later, a housing inspector happened upon Marisol, locked in a closet in her mother’s apartment, near death. She had been repeatedly abused over an extended period of time, eating black plastic garbage bags and her own feces to survive.
After leaving the hospital, Marisol reentered foster care. Her permanency goal: return to mother. The service to be provided to enable her mother to resume custody: parenting classes.
Marisol is the named plaintiff in a lawsuit brought by Children’s Rights, Inc., a national advocacy organization, and a New York organization called Lawyers for Children, which represents children in family court. The lawsuit is directed at reforming the huge, expensive, and dysfunctional New York City child welfare system. That system was described by its current commissioner as being marked by “decades of ineffective management, internally created and externally imposed impediments to quality care, and a disjointed organizational structure.”1 This lawsuit joins the growing list of court-based reform efforts around the country that are directed at forcing child welfare bureaucracies to implement fundamental and lasting reforms that will address the real problems within these systems.
The history of botched child abuse investigations and failed attempts to protect children in their own homes is long. Yet the press is filled with heartrending stories of children about whom the alarm had already been sounded, but who nevertheless were subjected to torture and, often, death that might have been prevented. No one could disagree with the need to prevent this kind of harm. Yet it continues. Data from records reviewed in three cities show that in Milwaukee, 48% of families investigated for abuse had prior involvement with the child welfare system;2 in Washington, D.C., 32% of such families had been previously reported to protective services;3 and in New York City, in 43% of families that had been the subject of an abuse/maltreatment complaint, children were abused or maltreated again while under city supervision.4
Why is meaningful change in child welfare, on even this most basic of issues, so elusive? Why do so many troubled government child welfare systems resist reform without the continuous external scrutiny that is usually supplied by litigation? There are a number of reasons: bureaucratic inertia; the difficult, time-consuming process of changing long-established practices; the cost of reform; the lack of administrative continuity; and the absence of political will to spend money on a constituency of children who are often exploited to win votes but who cannot vote themselves.
A crucial problem is the fact that child welfare systems have for decades operated under a changing series of single operating principles. Because these systems lack the capacity to do what is, after all, a difficult job that calls for subtle, sophisticated judgments, they have redefined that job into a far simpler one in which staff apply only the single operating principle current at the time. Every so often, in response to either changing fashion or public reaction, the tide turns and the operating principle changes.
But never have these systems acknowledged the fundamental principle that the circumstances of individual children and families vary, as should responses to those circumstances. As the writer Leo Tolstoy wisely observed, “Happy families are all alike, every unhappy family is unhappy in its own way.” Any system that purports to fulfill its public mission to protect this country’s most vulnerable children must have the capacity for professional, individual decision making applied to each family, and the resources to support and implement that professional judgment. But too many systems upon which this country’s most vulnerable children are dependent have neither.
Beyond a Single Operating Principle
For instance, three-and-one-half-year-old Marisol was returned to a mother who had already exhibited serious problems. Her care was left unmonitored because the system responsible for her safety and well-being was operating under a “family preservation” principle. However, rather than reflecting the experience of carefully designed family preservation programs that have really made meaningful efforts to preserve families—by recognizing that parents with problems need support and services to provide safe, nurturing homes for their children—the implementation of family preservation has all too often meant nothing more than leaving children with parents, regardless of the problems in the home and without providing sorely needed services to support those families that are salvageable.
Claiming that a system is committed to family preservation has been a convenient and inexpensive operating principle. The concept of family preservation, itself a reaction to the widespread disregard for the need for the preservation and support of families, has been incorrectly used as justification for doing nothing until families disintegrate and cause devastating harm to children.
Now, in the wake of a series of horrible child abuse cases that have finally captured the attention of the public and hence the politicians, many public agencies, including the one from whose protection Marisol barely escaped with her life, have announced, “Enough! From now on, we are going to protect children.”
Now, inadequate systems that failed to implement their principle of family preservation are adopting a new principle that emphasizes child protection and removal. That is likely to mean abuses in another direction, in which children are removed from many shaky but salvageable families to endure the questionable benefits of foster care systems, which are becoming all too much like lifelong—or childhood-long—sentences without any meaningful possibility of parole.
Any system that truly intends to protect children must acknowledge that embracing the principle of child protection cannot simply translate into the rampant removal of all children about whom abuse complaints have been received, any more than the embracing of the principle of family preservation should have been translated into widespread disregard of serious problems within families reported for abuse or neglect. Now the discussion around the problems in child welfare systems is being formulated as a choice between family preservation and child protection— when that is not the choice at all.
The real question is not whether family preservation or child protection works best, but whether child welfare systems will ever have the capacity to make individualized decisions that are not dictated by a simple, and simpleminded, operating principle—”preserve all families,” meaning, leave almost all children with parents, or “protect all children,” meaning, “when in doubt, take them out.” The real question is whether these systems can provide for the needs of the children who are dependent upon them, develop the capacity to determine what those needs are, and provide the services that are appropriate to address those needs. Can they be made to do so, and if so, how?
Legal Action to Promote System Change
As the problems of children increase and the government continues to demonstrate its inability to respond to their problems, those who seek to give these children a voice have had no choice but to turn to the courts, the last refuge for the powerless in our society. And who could be more powerless than the poor, disproportionately minority children who make up so many of those dependent upon this country’s child welfare systems? Class-action lawsuits on their behalf provide the surest device to obtain the extra leverage needed to get the attention of and move the multiple bureaucracies and local legislatures that control these children’s lives. The presence of a lawsuit can elevate the visibility of children’s issues, provide sustained pressure for change and more public funding, and produce publicly available information that in itself creates its own pressure for reform.
There are few signs that child welfare systems will make the necessary changes on their own. Even when administrators wish to reform their systems, they often lack the political power or longevity to do so. Under these circumstances, it seems both inevitable and necessary that class-action lawsuits will remain a major device used to alter the current procedures, to move some of these systems away from their seriously damaging approaches.
Lawsuits can, for example, require a system to develop training and provide the supervision necessary to support professional decision making, and the services necessary to support families in appropriate circumstances. They can also result in court orders that mandate adequate, timely child abuse investigations and services for children who must enter child welfare custody. This is not to suggest that getting such court orders implemented is an easy matter, but it is doable, particularly when these court orders support administrators who understand the need for them and view them as additional ammunition in their own reform arsenals.
The filing of a lawsuit on behalf of children in a child welfare system sets in motion a process that exposes the inner workings of closed systems to public scrutiny. A lawsuit is able to move behind stated principles and rhetoric to determine exactly what is happening. To substantiate the charges it sets forth, the litigation sets in motion extensive research and fact gathering. Often, it is necessary to use the courts to get this information, because many government agencies argue that confidentiality rules prevent them from opening their records, or because these agencies simply do not compile relevant information. The information collected from records becomes the first comprehensive history of children’s actual experiences, both at the front end of the system when a first report of abuse or neglect is made, and later on if they enter the system and continue in placement. The evidence is collected and statistically analyzed in such a way that it can be used to paint a comprehensive picture of the system: showing how children have been harmed; describing what is wrong with practices and procedure; and indicating what specific changes must be made to correct the problems.
By contrast, politicians who undertake reform are likely to draw only on the most expedient approaches to quieting public outrage, for instance, by renaming and re-staffing a bureaucracy without taking the time to fully examine why the system is not working. At its best, well-planned strategic litigation is not motivated by a political agenda but by a thoughtful process that relies on national and local experts in child welfare to find the root of the problems, and to propose a variety of approaches to reform.
Litigation can also organize community resources in a reform effort by persuading key individuals in a child welfare system to recognize their common goals and work together in a nonadversarial fashion. With the possibility of litigation squarely on the table, child welfare administrators, litigators, and other players in the community are forced to ask themselves whether they want the same goals for children. They must also ask themselves whether they want to fight about these goals or sit down and work together to achieve them as quickly as possible. Experience shows that the parties often will choose to work together toward the goals they seek—at least once it is clear that in the absence of voluntary cooperation the court will intervene.
Left to their own devices, in the absence of focused and sustained pressure, too many government child welfare systems have responded to the crisis of the day—or the decade—with the eager acceptance of single, simple operating principles as a substitute for what any system truly needs: adequate management, a competent workforce, sufficient resources, and the capacity for professional decision making.
The operating principles discussed here, family preservation and child protection, are not the only ones that will affect what happens to children. Other apparently appealing solutions, like privatization and neighborhood-based services, now also loom large on the agenda. The degree to which these will be used as single-principle solutions remains to be seen, but past practice suggests serious future problems if they are promoted as the cure to all that ails child welfare systems, or if they are used to ease pressure on politicians without regard to rigorous monitoring of the quality of services, supervision, and protection that are actually provided to children.
Often lost in the midst of all of these competing principles, of course, are the interests of Marisol and hundreds of thousands of children like her. And in the absence of their own trade associations or lobbying groups, and in the face of the devastating consequences these failing child welfare systems inflict on our most vulnerable, helpless citizens, these children probably need their lawyers.
Scoppetta, N. Protecting the children of New York: A plan of action for the Administration for Children’s Services. New York: Administration for Children’s Services, 1996, p. 9.
National Council on Crime and Delinquency. An analysis of the Milwaukee County child protection and foster care systems: Results of case readings conducted for Milwaukee County Department of Human Services and the Children’s Rights Project of the ACLU. Washington, DC: NCCD, 1995, pp. 26–27.
Stein, T.J. LaShawn v. Marion Barry, Jr. Vol. 1. Children’s Rights Project of the ACLU, pp. 30–31.
Marisol Joint Case Record Review Team. Marisol v. Giuliani. Services to Families with Open Indicated Cases, August 1, 1997.