Failure to Protect
homelogan marrcaseworker fileschild policydiscussion

A NEW PARADIGM? By Jane M. Spinak
Jane M. Spinak is the Edward Ross Aranow Clinical Professor of Law at Columbia Law School. In this essay, she discusses how some child welfare and family court systems have begun to reevaluate the way they make decisions about families, with more emphasis on viewing parents as participants in finding solutions to problems rather than as the problems themselves. To illustrate these reforms, Spinak discusses how a new paradigm of communication could have affected each of the families profiled in "The Caseworker Files."

Not one of the stories in the film left the viewer with the sense that the children who entered care or those who remained at home were better off because of the decisions that either the child welfare or the court system made.

"Who holds these people accountable? The answer is nobody." An angry citizen stands before a panel investigating the Maine Department of Human Services following the tragic death of Logan Marr in foster care, asking and answering his own question at the start of "The Caseworker Files." Is he right? Does anyone hold the complicated child protective and foster care systems accountable for the work they do? Or does the system of accountability -- a complicated, multi-layered, bureaucratic combination of local, state, and federal rules administered by both child welfare and court systems -- fail to provide the kind of oversight that would change this citizen's answer?

Child welfare and family court systems charged with protecting children and providing assistance to families are usually measured in two ways: first, whether any tragedy like Logan's has occurred, and second, by the number of children investigated, placed in foster care, or adopted. Neither the instances of fatalities nor these gross numbers provide the public with an adequate measurement of whether the intervention of these systems adds value to the lives of the children and families they serve. The public often assumes that the good provided by even imperfect systems generally outweighs the harm the systems may inflict. The caseworkers in the film live by that assumption, believing that their interventions are going to help keep children safe and aid families in their desire to remain together or be reunified. Yet not one of the stories in the film left the viewer with the sense that the children who entered care or those who remained at home were better off because of the decisions that either the child welfare or the court system made.

If we view the enraged citizen's question through this value-added lens, we may be able to provide a different kind of answer than the usual one that results in firing administrators, skewering judges, and leaving caseworkers with the sense that "we just can't win" when deciding whether to allow a child to remain with her family or remove her from her home.

Why are we discomfited by the decisions made in the film? First, there is not a single instance of constructive communication between the professionals and the clients. The thoughtfulness frequently expressed by the caseworkers and parents to the camera is never part of the conversations that these people have with each other or with their lawyers. The human suffering felt by everyone is neither acknowledged nor used to construct solutions. The caseworkers appear to have little understanding of the impact of their questions or decisions on the parents' sense of integrity. The parents view the caseworkers as all-powerful, uninformed, and wrong. The caseworkers in turn feel overwhelmed and undervalued. They retreat into discredited methods of working with clients: accusatory, adversarial, and taciturn.

In recent years, some child welfare and family court systems have cautiously begun reevaluating the way in which decisions are made about families. The most radical aspect of this change is the involvement of the family itself: Instead of seeing the parents or other adults as being the problem to fix, they are seen as active participants in finding a solution. To make this giant cultural leap, professionals are assessing families from their strengths and not just their weaknesses. Those strengths may be individual or collective; they may be psychological, emotional, physical, or material. Families may require professional support, but just as likely familial or community support. To find those strengths requires an ability to engage family members respectfully and honestly, to acknowledge that the professionals do not have all the answers, and to accept the fluidity of creative solutions. This kind of engagement also requires different methods of communication than the ones seen in the film.

Matthew and his father Keith's case provide some examples. Prior to first appearing before the judge, a case conference is held in which all the people involved try to reach a solution rather than hold a full adversarial hearing. But this encounter can't be seen as anything other than the state's attorney giving Keith his bottom-line offer in a win/lose negotiation: Admit that you're an alcoholic and an abusive parent and we won't have to fight about it in front of the judge. When Keith and his lawyer say that Keith wants Matthew to return home, the state's attorney says that's the deal-breaker and gathers up his files. Nothing that happens in that room remotely represents a serious attempt to address the complex issues this case raises. Instead, everyone takes their position and sticks to it. Later, after the judge schedules a hearing, David, the caseworker, and Keith stand on the courthouse porch. David tells Keith he isn't going to be able to visit or call Matthew because the hospital staff says it upsets Matthew too much. Keith's emotional and intellectual responses to this announcement are barely acknowledged by David even though we know from other scenes how much David recognizes Keith and Matthew's close connection.

These two encounters are destined to fail both because Keith isn't envisioned as part of the solution and because they are rogue meetings, disconnected from the purported larger goal of helping Keith take care of Matthew safely. Many child welfare systems and even some courts have abandoned this kind of interaction and embraced a more formalized and inclusive meeting arrangement to construct more productive results. The meetings may take place in the child welfare office, a local community center, the courthouse, or even the family's home. In addition to the parents and caseworkers, foster parents, extended family members, service providers, community supports, and older children may be included. If the court has also embraced this system, attorneys and other court personnel -- including the judge -- may also attend. All the relevant information is discussed; everyone is encouraged to suggest solutions; hard issues are discussed; and agreements with short- and long-term goals are crafted. No one is allowed to leave the meeting unsure of his or her charge. If the judge didn't participate in the meeting but is being asked to approve the agreement, the information gathered at the meeting is provided to the court. Parents may or may not waive their due-process rights to various hearings based on the extent of the agreements. Then everyone plans the next meeting. Months are not allowed to go by without measuring the impact of the current plan. If the plan isn't working, the court hears about it quickly and options are considered. This becomes accountability at its best.

How would this approach have made a difference in the lives depicted in the film? In the case of 2-year-old Mark's removal from his mother Beth, the caseworker, Shaleigh, would have met with Beth and her parents in person to tell them that the department was substantiating the allegations of neglect. Shaleigh's supervisor, Melissa, would not have told Shaleigh that all she had to do was make an attempt to reach Beth by phone to tell her of Mark's removal. Instead she would have helped a brand new caseworker such as Shaleigh learn to deal with Beth's understandable anger in person. Before the state's attorney let Shaleigh send the sheriff to remove Matthew, Shaleigh and Melissa would have convened a meeting to explore all of the alternatives. In addition to Beth and her parents, they would have gathered the other necessary participants: relatives or friends who could assist the family with repairing or cleaning the home or serve as temporary caregivers; the state's attorney to elucidate the department's legal responsibilities; and community and/or government agencies to clarify the availability of additional housing or financial assistance. Beth and her family would not have been able to accuse Shaleigh of being the lone villain, but would have had to consider the various options that everyone in the room were proposing to keep Mark safe. The state's attorney would have established whether any help had been provided to the family before he considered authorizing a removal. Even if a removal were necessary, potential reunification efforts would have been considered prior to the case reaching court.

For Matthew and Keith, David would not have been acting solely as an intermediary between Keith and the hospital personnel. Instead, he would have been organizing ways for Keith to meet with the hospital staff to support Matthew's recovery and to facilitate their mutual need to communicate and visit with each other. At the same time, the judge would not have permitted Keith to enter a plea based solely on alcohol use without a clear acknowledgment that violence was also preventing Matthew from returning to his father's care nor without a concrete plan for addressing both issues.

The other case in the film, of Shirley and her children, resulted in the boys remaining in Shirley's care. But the adversarial process of getting there did little to convince Shirley that the department wanted to help her care for her children. Robin, the caseworker, and her supervisor, Cindy, developed a theory of Shirley's emotional abuse of her children even though Cindy had never met Shirley and Robin had not spent time with Shirley in her home. But Robin's best opportunity to discuss this theory with Shirley -- in the therapist's office -- was lost when Robin failed to acknowledge her responsibility to correct inaccurate information about Shirley that the state's attorney gave to the judge. And the meeting Robin held with Shirley, her boyfriend Dan, and Dan's attorney in the hallway at court ended in Robin simply walking away rather than helping Shirley (or Dan) deal with the reality that Shirley had to end their relationship if she was going to keep her children.

The ultimate outcomes in these cases may have been the same: Some children would have been removed and some would have remained at home. But a decision-making paradigm premised on strength-based assessments of families, greater and more effective use of information, commitment to collaborative decision-making, and openness to creative solutions, would have resulted in far greater assurance that the outcomes were correct.

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