In defense of parents in the child welfare system

connieThis says is all…….

2016 presentation to the indigent task force

In 1997 Pres. Bill Clinton, with the acknowledged assistance of his wife Hillary Clinton, signed the
Adoption and Safe Families Act, also known as ASFA.

In essence, this legislation put a price tag on the head of every child that came into contact with the child welfare agencies across this nation.

This was a knee-jerk response to the decades of lost children in the child welfare system which had resulted in class action lawsuits in several states, including the Brian A class-action in the state of Tennessee in 1994.

When the federal courts determined that the child welfare agencies had lost children in the system, the federal government reacted by determining that a quick transition for children from foster care into new adoptive homes would be the solution. To promote compliance with its agenda, the federal government put a bonus check on every child for being adopted into a home of strangers.

On the surface this seemed like a resolution to a problem that had evolved over three decades of the government’s attempt to manage child safety through a government agency.

 Instead, it became a marketing frontier for the state agencies and for private contractors to remove children from homes and to engineer a new environment and a new family structure for children.

These funds are derived from the Social Security Act Title IV E funding that has driven the child welfare system for now more than 20 years. This bonus system which started as a $4000 reward for the finalization of an adoption has burgeoned into an entitlement program which now exceeds the foster care program by nearly double.

It is not only the child welfare agencies that have benefited from this financial strategy. What is developed over two decades is an entire system of government sanctioned child trafficking.

How does this affect indigency in the dependency actions brought in the juvenile court system of Tennessee?

On the surface, it would seem that attorneys who are appointed to defend the constitutionally protected rights of parents and the safety and welfare of children, would do their best to defend family integrity while rehabilitating and re-unifying families in need.

Unfortunately the opposite has occurred.

In a dependency action brought under Title 37 of the Tennessee Code the parents are entitled to a court-appointed attorney if they are indigent. Under Tennessee Supreme Court rule 13 these funds are limited to a compensation of $750 unless the attorney is able to get the court to sign an order that the case is “extended and complex.”  Under the circumstances and attorney is able to claim $1500 from the administrative office of the courts.

In addition, from the same pool of attorneys, the courts will select attorneys to serve in the capacity of Guardian ad litem under Title 37.  Under this provision, the attorneys are subject to the same compensation schedule.

These attorneys are often new and naive in the practice of law.  They are fighting against the sophisticated legal staff of the state of Tennessee Department of children services. In the event of appeal, they are now faced with the overwhelming battle against the resources of the Tennessee Atty. Gen.’s office.

Even this does not touch on counsel’s responsibility to advocate for these parents and children through the course of the DCS reunification and investigation process. What this means is counsel is often faced with the task of attending meeting after meeting after meeting. Ultimately the attorneys become exhausted with the process and spend little time in the real defense of their clients.

These issues are sad but true.

In the past 18 months two important cases have been ruled upon by the Tennessee Supreme Court affecting the rights of parents and making effective counsel at the trial court level more important than ever.

In January 2015, the Supreme Court entered an opinion in In re Kaliyah.  In this case the court determined that the STATE was not required to show that reasonable efforts had been made to reunite a family in a termination of parental rights proceeding. This means that a parent’s attorney must be vigilant in making sure that the state has complied with the reasonable efforts requirement in the dependency proceeding. The requirement of reasonable efforts is not merely a state requirement, it is the basis of the federal funds received by the state upon which the agency depends to balance its budget.  As an attorney who defends the right to parent, the removal of the reasonable efforts requirement in a termination of parental rights proceeding is devastating.

In January 2016, another blow came to parents in the Tennessee Supreme Court decision of In re Carrington. In this case a brave mother had presented her case to the Tennessee Supreme Court in stating that her counsel had not properly represented her in the trial court action. The Tennessee Supreme Court considered the issue important enough to be accepted for review and appointed counsel for the process of briefing. The result to parents is devastating. The Tennessee Supreme Court has effectively ruled that any deficiency in the trial court level can be cured by the Court of Appeals reviewing the entire record and every conclusion in the trial court order regardless of whether that issue is briefed by the parents counsel. This totally ignores the deficiency of counsel at the trial court level who are not trained and are overwhelmed by the resources of the state.

In addition it cannot be ignored that the Council who rotate through the juvenile courts taking appointments as their main source of income are reluctant to defeat the state child welfare agencies or displease the juvenile court judges by causing long and protracted litigation and often fall on the sword, or rather cast their client upon the sword of dependency Court, telling the parents they can never beat the State.  Or bargaining away their due process rights with the promise of reunification.  Giving the STATE agency a “WIN” against the parent.

What evidence do I have that this occurs? Let me tell you about Evelyn. Evelyn and her family are victims of the child welfare system. In 2014 a child welfare service worker came to her home. Evelyn was upset and angry about the intrusion. She got in her car and backed out of her drive and collided with the DCS worker’s car. The DCS worker called the police who came to the home of Evelyn, went inside Evelyn’s home, and then arrested Evelyn within her own home for public intoxication, she was cuffed place in the back of the police car, and her children were stolen and put in foster care because there was no parent available to care for them based solely on the arrest.

Within a month, her court-appointed attorney had convinced Evelyn that she should stipulate that the children were dependent neglect based on this arrest. That was March 2014.  As I stand here today in August 2016, Evelyn is still fighting the Department of children services for the return of her children. A competent attorney would’ve defended her position to have a home in which she could protect her children and bring to the courts attention the illegal arrest.

This is but a mere sample of the tragedies that I have seen in the dependency court system.

Another issue related to indigency and the right to parent is the termination of parental rights based on abandonment for failure to support. Although that is not the subject of this forum, it is a social issue that must be addressed. Poverty is a social issue and not grounds for termination of parental rights.

I have recently defended a parent at multiple court levels for his simple inability to make an income that is satisfactory to the child welfare agency. Even though he admits that he is in need of assistance from his family and doesn’t intend to try to raise the child on his own, the state agency has insisted that he be able to provide his own home, his own utilities, and that he have full-time employment before he can parent his child. This young man who suffers from Asperger’s syndrome does not have a high school diploma, does not have a drivers license, and has been able to maintain employment for more than a few weeks at a time. And yet the state was able to terminate his parental rights forever because he was unable to provide financial support to his child who was in foster care. It is important to note that this father had never abused or harmed or neglected his child AND he attended every visitation he was allowed.

Part of this panels endeavor is to determine where the money will be found for proper representation of parents in the dependency system. And as this process continues, the panel should always consider that it is not just the right to parent, it is the right to familial Association. What that means is that the child as well, has a constitutional right to the generational continuity of family ties.

The panel must understand that the money is already in the system. The job now is to reallocate funds from the distorted and inappropriate bounty placed on each child’s head with the Adoption and Safe Families Act, and to provide those funds as resources that rehabilitate and re-unite families who have been brought into the child welfare system.

Pending before the United States Senate is the Family First Act introduced by Senators Hatch and Wyden. This bill having passed the House of Representatives is now pending before the United States Senate. The goal of this bill is to address and reallocate funding so that children are more able to stay with family and relatives, as opposed to rehoming them into the homes of strangers and social engineering generations to come.

We must also be mindful of the conflicts of interest that have been created in the child welfare agency and its contractors.

The child welfare agencies serve TWO antagonistic functions. Their duty is to provide services to families and children that best lend to the welfare and development of children. In addition, they serve as an investigative and prosecutorial arm of the state government for child abuse. These functions cannot coexist in the same agency without conflicts of interest.

Child welfare agencies, including our own Department of Children Services, have contracted with private providers that proclaim to offer services both for foster care and for reunification. This cannot be tolerated. These two service arms are diametrically opposed and cannot come from the same provider network.  This conflict of interest is detrimental to families and does not serve the public interest.

Gov. Haslam appointed James Henry to serve as the commissioner of the Department of children services in 2011. Mr. Henry is the CEO of Omni, the largest private contractor of foster care services in the state of Tennessee. Mr. Henry served in the role as Commissioner from 2011 to 2015 when he was transitioned into the role of Chief of Staff for Gov. Haslam. During the course of his tenure at the Department of children services his company acquired over $200 million from the taxpayers.

henry haslam

With no oversight of the Department of children services, the spending by private contractors, or the legal services provided to parents in the dependency system, the system can only fail.

And fail it has.

As leaders of the state and of your communities, you must create alternatives.

Number one: all conflicts of interest must be forbidden.

Number two: parents must have qualified and competent legal staff to defend proceedings against them, including access to experts, legal professionals, and support staff.

Number three: parents must have competent advocates for the process of rehabilitation and reunification. This cannot be substituted by persons who hold themselves out as protecting the best interest of the children. For these entities have lost the perspective of familial integrity and the child’s right to generational family ties.

Number four: the state child welfare agencies must have effective oversight and reporting mechanisms available not only by court and supervisors within the system; but the parents and children of the system must have an effective means of reporting their deficiencies and getting resolutions.

Number five: there must be a reexamination of the issues of  IMMUNITY, TRANSPARENCY, and DUE PROCESS at every level in the child welfare system.

Number six: the funding must change. The Families First Act before the United States Senate is a move in the right direction. Our country has spent 40 years on a social experiment that the government is the best substitute parent for the child. This is false thinking. Families and extended families are the best source of nurturing for children.

Thank you for your time and I would like to introduce you to some victims of the system.