Broken Families, Broken Courts

February 8, 2008 permalink

Karen de Sá comments on the railroading of children through family courts, and resulting legislation to alleviate the problem.

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Broken Families, Broken Courts
Day 1: How rushed justice fails our kids

Part 1 of a Mercury News Special Report

By Karen de Sá, Mercury News, San Jose Mercury News,Article Launched:02/08/2008 06:53:25 PM PST

It's a typical morning in the court system designed to protect California's children from abuse and neglect: Justice is being strangled by the clock.

In this Sacramento courtroom, attorneys spend two minutes on the case of a 3-year-old sent to the children's shelter after being found in a filthy home. The case of a teenager anxious to reconnect with lost siblings gets three minutes, yet his desperation cannot be felt; he's absent from his own hearing. Should a mother's right to her child be terminated? The court date opens and closes in 60 seconds. Parent and child are legally severed for life.

By 11:30 a.m., 14 cases into a 21-case morning, Sacramento Superior Court Referee Daniel Horton is anxious. "C'mon folks, we can do this! Let's go, let's go, let's go!" he shouts. "OK, counsel, we can do this, let's go, let's get it done. It's like driving a car. Sit down and buckle up."

Scenes like this repeat daily in the state's juvenile dependency courts, a little-known arm of the justice system deciding the fate of families whose children have been removed by social workers.

The stakes are high. The dependency courts choose who deserves another chance to parent, and who does not. They decide whether children will grow up in their homes, be placed with relatives or raised in institutions. But despite the magnitude of the civil proceedings, courts from Santa Clara County to Riverside County seldom have the luxury of careful decision-making for the 75,000 children and their parents now in the system. With too little time to weigh the facts and consider best options, there's an ongoing risk that children will be wrongfully removed from their parents, or sent home into harm's way.

A yearlong Mercury News examination found widespread evidence of a system riddled with problems that open the door to poor judgment:

• Judges and lawyers representing children and parents juggle caseloads in some counties that at any given time are far higher than even the maximum recommended standards. On a recent weekday, a San Joaquin County judge ruled on 135 families in a single day. Dependency lawyers in San Bernardino County represent 464 children each - almost five times what many experts recommend.
• High caseloads mean judges regularly rule without time to probe basic information. Throughout the proceedings, even at critical stages such as when children are first brought into foster care by social workers, hearings are often superficial. Although national guidelines call for hourlong initial hearings, throughout the state they commonly last five or fewer minutes.
• The field of dependency law is a legal outpost often dreaded by judges and undervalued by court authorities. Throughout the state, only one-third of the full-time judicial officers hearing dependency cases are judges; most often, commissioners or referees preside over the hearings. Sometimes, they do so on a part-time basis, while also being assigned to other, non-prestigious work. In Tulare County, for example, a commissioner handles dependency cases four days a week and traffic matters on the fifth.
• Substandard representation is commonplace for many parents in dependency court whose income makes them eligible for court-appointed lawyers. In some counties, including Santa Clara County, the public defender has been replaced by private firms that provide financial savings to the county, in many cases by hiring inexperienced attorneys and cutting costs for investigators and experts.
• Children whose interests are supposed to determine dependency case outcomes are regularly excluded from the court process. Judicial officers issue life-altering rulings without ever seeing the children whose futures are being decided. Lawyers fail to bring even teenage clients to court or interview them regularly.

The dysfunction permeating the dependency courts is unknown to most people. Cloaked in confidentiality designed to protect children's privacy, the system allows few outsiders in, holding hearings so secretive that the law provides for criminal charges if clients or lawyers discuss them.

Yet system insiders, as well as numerous outside legal experts, openly describe the overloaded courts as a threat to the fundamental legal rights of parents and children. A high-level commission appointed by state Supreme Court Chief Justice Ronald George has spent the last two years examining the troubled courts and is expected to push for sweeping reforms in the coming months.

The rapid-fire consideration of dependency cases is all the more alarming because parents and children spend little to no time with their lawyers in advance of hearings. Social workers investigate the cases and file a report in court. All too often, advocates for children and parents accept or reject the findings, adding little to the courtroom discussion, and simply move on to the next case.

"When you calculate it out, it's two minutes per case - enough time for everyone to say submit or object, but not much more," said former supervising Sacramento Referee Carol Chrisman.

"If you were there as a child or parent, wouldn't you want the time to say something, and not have the judge thinking, 'I hope they don't want to say anything because I've got 20 more cases to get through?' How do you make a good decision without hearing from people?"

Monique Gaeta

A phone call, then panic,

and soon her son was goneMonique Gaeta landed in dependency court in 2003, while she worked at Bonfante Gardens Family Theme Park and her then-boyfriend watched her three children at home in Morgan Hill. Her trouble began when her boyfriend, now her husband, called her cell phone to say the youngest child had been badly burned in the bathtub, and he was rushing him to the hospital.

Monique met them in the emergency room, after leaving work in a panic.

The boy arrived at Valley Medical Center in San Jose with second- and third-degree burns covering his legs like fire-red boots. Monique and Joseph Gaeta maintain that one of the other children fiddled with the tap, setting it from warm to hot. But a pediatrician's report triggered a call to Santa Clara County Child Protective Services. The doctor believed Joseph had intentionally burned the toddler. In dependency court, Monique faced a common allegation: She had failed to protect her child.

With her youngest still in the hospital, police escorted Monique's two older children to a Spanish-speaking foster home in Gilroy, although they spoke only English. Later, the two would move to the children's shelter, and then to a second foster home in Hollister.

Joseph was arrested, and after two years of court hearings, he pleaded guilty to felony criminal negligence, serving a seven-month jail sentence.

Meanwhile, Monique battled in dependency court to regain custody of her children. But her desperation was matched by the court's seeming indifference. "You're in, you're out, they don't even talk to you," she said. A typical discussion with court-appointed attorneys lasted mere minutes. "They always said, 'submit, submit, submit,' just go with what the court says."

John Nieman, supervising attorney for the firm that represents impoverished local parents - Santa Clara Juvenile Defenders - said he was "aghast" that Monique felt her lawyers did not maintain contact with her. He said the attorneys persuaded her to work cooperatively, an approach that led to the case being resolved.

It took one year and six months for the court to return two of Monique's children. The injured boy never came home. Monique said goodbye to her son on a swing. "Mijo, Mommy loves you and she'll always love you, but you're going to a new mother," Monique remembers telling her son. "I told him that I was sorry but I would come for him one day, and he put his head down."

A child's death

Judge gets incomplete story,

leading to a tragic result Dependency court judges must promptly make the most critical of decisions. Err one way, and a child may be sent home to a dangerous situation. Err the other way, and children are separated from their families for a life just as chaotic and fearsome. Growing evidence shows disruption can be worse for many children than remaining in their homes with the appropriate support services.

Worse, sometimes judges do not get the information they need.

On Dec. 26, 2002, San Mateo County's presiding juvenile judge, Marta Diaz, got a brutal reminder of that. A baby she had authorized to visit his home had been declared brain-dead. His father was accused of violently shaking him on Christmas Day.

A distraught Diaz wanted to know how the system failed 8-month-old Angelo Marinda and how to prevent it from ever happening again. She ordered extraordinary open hearings in the case, where she discovered critical facts she was not told before she ruled Angelo should be permitted to visit home. Diaz never heard, for instance, that Angelo and his sister had been bruised and scratched during previous unsupervised visits with their parents. Nor did Diaz know that Angelo's attorney had not talked to his temporary caregivers, who knew of previous harm to the children.

In her final report, Diaz concluded that the system had broken down, and not just in this case. Too many lawyers fail to meet personally with their clients; rather, they simply "submit" to the findings of the social workers in court, without adding information or correcting the record.

"An agency is not going to stay great without strong advocates challenging them, because that leads to complacency," Diaz said. "The 'submit culture' should have bothered me more. It ultimately poses a threat to the health and safety of children."

The Marinda case is the exception; most dependency cases do not involve physical or sexual abuse. Eighty percent of cases seek to protect the children from neglect, according to state child welfare data. Parents leave children home alone, or with inappropriate caregivers. Bingeing on drugs or just plain impoverished, they fail to stock the refrigerator. Others lose their kids when police are called to break up violent domestic disputes.

Occasionally, cases land in dependency court that have no business there - an injured child turns out to have suffered because of "brittle bone disease," not an abusive parent; a sexual molestation allegation is planted by a vindictive spouse. The system is expected to weed out such cases, and for those able to afford private lawyers, it often does. But that may not also be true for the poor.

High caseloads for court-appointed attorneys mean "justice can't be done for cases that deserve it," said Frank Dougherty, a respected Sacramento private attorney and licensed forensic psychologist. "The system as practiced is not designed to protect parents' and children's rights.

"It isn't a matter of turning their backs on the shaken baby, it's that they don't have time to see."

Experts' view

Typical lawyer's caseload

called 'humanly impossible' The signs of excessive caseloads are widespread. Court-appointed attorneys have little time to prepare their cases or even meet with their clients. Joan Turner, who represented 280 Sacramento County children, said she meets clients to interview them and understand their needs at initial hearings, and then encourages them to return to court so she can see them again in the brief intervals between her other appearances. Other than that, she said she was seldom able to visit children unless they get hospitalized for attempting suicide.

Dougherty said he wouldn't take on such a load, even if offered $1 million a year. "No human being can take that caseload and do it. It's humanly impossible."

California Court of Appeals Justice Richard Huffman, a member of the commission studying problems in dependency court, called the caseload realities "obscene."

"Is there any other part of the court system that we would allow attorneys carrying 300 to 600 clients?" he asked. "The state has intervened in between a family, and I think the state has an obligation to assist them by providing adequate representation - not just somebody that runs out in the hallway and says: 'Is the Smith family out here someplace amongst this horde of people?' That is malpractice in any other area of the law, and it's a shame that we allow it here."

Huffman's characterization is not an exaggeration in most dependency courts in California. Attorneys handle more than 500 cases each in Monterey County, and 406 in Riverside County, at any given time, according to studies of the system. Court statistics list the statewide average at 273, well above the 100-case recommendation cited by the American Bar Association.

One boy's path

Shelters, juvenile hall

and finally back homeToo often, the system serves the children as poorly as their parents.

J.D. Ruiz landed in San Mateo County foster care at age 10, a result of his mother's struggle with depression and homelessness. Over the next five years, J.D. bounced between shelters and foster homes, in between visits to juvenile hall.

After he finally was returned home, J.D. achieved a remarkable turnaround. Off probation, J.D. spent a year at home with his mother before enrolling at San Diego City College last month. Now 17, he plans to be a social worker or probation officer to guide youth on a course different than his own.

Reflecting on his early days in the system designed to protect him from harm, J.D. recalled the feeling he had in dependency court: hopelessness.

When he and his family would go to court, he recalled, "We'd wait for a long time, then we'd go in there and my attorney would say a couple things and that would be it," J.D. said. "It's actually been like that for a bunch of my court hearings, two to five minutes."

Often this haste causes hearings to become impersonal.

"You run the risk of getting burned out and begin just processing them instead of carefully thinking," said Sacramento Referee Susan Aguilar. Yet on rare days when the workload is light, she sees the difference an engaged judicial officer can make. When she can, Aguilar salvages placements for foster youth threatening to run away, and reaches out to parents feeling so overwhelmed they are giving up the fight for their children.

In the seconds between one case and the next, San Francisco Commissioner Catherine Lyons squeezes in praise for some of her court's consumers.

"I'd just like to tell both the parents how much admiration I have for both of you," she told one couple as a reporter watched. Lyons was pleased to see the mother had re-enrolled in drug treatment after being kicked out of a previous program because she had no citizenship papers. "You fought and fought and fought for yourselves and your children and for your sobriety. You are my heroes."

But too often, in the breakneck pace of the daily calendar, even niceties go by the wayside.

Overcrowding affects cases from the time judges first review the decision to remove the child from home. It is a critical juncture, as Marvin Ventrell, executive director of the National Association of Counsel for Children explained: Overloaded judges may be too inclined to order the child kept in foster care until further hearings take place. And that decision, once made, is hard to undo: "Once the train leaves the station, it's very hard to back up."

But a pattern was obvious as the Mercury News observed the proceedings in four Northern California counties: The hearings were perfunctory, except in those rare cases when private lawyers, rather than court-appointed lawyers, represented the parents.

Dozens of cases

In race against clock,

little time for discussion On an average March weekday in Santa Clara County, each of the three dependency courtrooms struggled to race through as many as 30 cases by noon. In Judge Patrick Tondreau's courtroom, there were four initial hearings in addition to the 22 other cases scheduled for the day.

The last of the four was pushed into the afternoon calendar, cutting into time normally reserved for dependency trials. In a seven-minute hearing, the court decided that a round burn on a 5-year-old boy's arm from a cigarette lighter was good cause to remove him and three other siblings, ages 1, 2 and 5, from their parents. The couple, listening to Spanish translation through headsets, said nothing as they sat beside their court-appointed lawyers. Although the social worker's report said the boy "gave some changing and inconsistent answers" when questioned about the burn, the children's general "unkempt" appearance and dirty fingernails raised other concerns.

Yet down the hall two days later, when a private attorney represented parents facing similar circumstances, the detention hearing lasted 16 minutes, more than twice as long. The allegation against both mothers was the same - that they "disciplined" their children with fire.

In the hearing with private attorneys, two immigrant software engineers were given time to address the court. Both parents had discussed the case at length with their attorneys before the hearing. They had explained the circumstances - that Indian custom was to cook large amounts of food, but because the kitchen was so small, hot pans were placed on the floor. A rambunctious boy racing into the kitchen had collided with the cookware, they said.

"I know my wife would never hurt either child; this is purely an accident," the father told the court. "I'm a good Mom," his wife added. "We never abuse our kid; we never hit him or anything. I just give him a lot of time out. He's a very good kid, a wonderful kid."

Private attorney Robert Powell, whose office charged the parents a $10,000 retainer fee, argued that the 5-year-old had spent only one night away from his parents before the incident, the night his sister was born. But he was now in the county children's shelter. Powell added that the boy was known for telling tall tales.

"Are we to believe that this mother cooks with lava?" he asked. "This child tripped over a pan on the floor in the kitchen."

With the chance to hear and consider arguments, Judge Katherine Lucero came up with a creative - albeit unusual - arrangement. The family was allowed to remain together at a cousin's home until the case could be further investigated and reheard four days later.

"Robert Powell is the opposite of what we ordinarily see," Lucero said after the hearing, adding that she likes lawyers who fight for their clients. When parents lack effective counsel, Lucero said, "it's up to judges to screen out the wrongfully accused."

Contact Karen de Sá at kdesa@mercurynews.com or (408) 920-5781.

Source: San Jose Mercury News

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Governor signs foster care legislation

By KAREN DE SA/MediaNews Group, Article Created: 07/23/2008 09:17:17 AM PDT

Gov. Arnold Schwarzenegger strengthened the rights of California's 80,000 children in foster care on Monday, signing a law that ensures greater opportunities for youths to be present in court hearings deciding the course of their lives - from where they will live to how often, if ever, they will see their families.

The measure was introduced by Assemblyman Dave Jones, a Democrat from Sacramento, to address a major flaw in California's juvenile dependency courts throughout the state: Hearings routinely occur without the children whose lives are at stake. Their absence was one key problem highlighted in the February series in the Mercury News, "Broken Families, Broken Courts," that revealed deep dysfunction in the state dependency system, the largest in the nation.

A commission appointed by Chief Justice Ronald George later reiterated the problem.

The new law, which takes effect Jan. 1, calls for judicial officers to postpone hearings for children at least 10 years old if they have not been given notice and the chance to attend; while the law already called for children to be notified of hearings, it made no provision if the law was ignored.

In a letter released to members of the California State Assembly who had voted unanimously for the bill, the governor said he "wholeheartedly" supports the goal of providing foster children with greater access to hearings. "I am signing this bill because the foster children of this state deserve to have a role in their futures," Schwarzenegger said.

But he also sent a rebuke to local decision makers - the judges, lawyers and social workers who oversee such weighty matters as whether children will ever see their parents again, following allegations of abuse or neglect. Outside of Los Angeles, where the participation of children is an ingrained part of the local court culture, foster youths are routinely absent from hearings in their cases, the Mercury News investigation determined.

Judges up and down the state revealed in interviews that they are unable to make the best decisions for children in foster care when they cannot see them, hear from them, and attach a name with a file, regardless of the age of the child.

Schwarzenegger questioned "why the courts have not made such access a greater priority when it is allowed under current law. More likely than not the reason is lack of resources and overburdened court schedules, which this bill fails to address."

He also cautioned that whatever costs the new law would incur, such as transportation expenses or social worker time, would have to be borne under existing budgets, in a time of fiscal crisis statewide.

Source: Daily Democrat, Woodland California