Tuesday, December 15, 2009

Parental Rights Amendment

Parentalrights.org is forwarding a parental rights amendment to the U.S. Constitution. 
This has been tried and failed before in various states. Repeatedly. Right concept, wrong way to do it. In 1996, Colorado lost this attempt, and I immediately saw why it failed. In response to this failure, I reframed the issue from children's rights vs. parents rights to family rights. That concept has caught on with grassroots activists, but evidently the merits of eliminating the competition between parents and children have escaped the monied activists. 

This should not be handled at a Federal level. The states pass the laws governing child welfare, the states administer the laws governing child welfare, the Feds maintain a "hands off" policy regarding child welfare to the point that they don't even exercise oversight over the federal funding they give the states to pass and administer their child welfare laws. A  family rights amendment  to the state constitutions is easier to pass and will be much more effective in reigning in child welfare abuses. Even better is an amendment which closes all the existing loopholes in the parental rights amendment. 

A Parental Rights Amendment is not going to work. In analyzing the tension of rights between parental rights and children's rights, the children's rights will win every time.  It is a waste of time and resources. Furthermore, it does not remedy the problems families face under our current scheme.

Notice the language "Neither shall the United States nor any state shall infringe upon this right without demonstrating that its governmental interest as applied to the person is of the highest order and not otherwise served." Loophole. All the judge needs to do is recite the incantation, "The court finds the state's interest is of the highest order and not otherwise served," whether or not the evidence supports that finding. Just like they do with Reasonable Efforts now. It feels good but lacks substance. We must be smarter than this. . .duh.

more links on failed attempts:
other states and analysis http://parentalrightslegislation.blogspot.com/2006/04/brief-history-of-parental-rights.html

Previous commentary

Tuesday, December 1, 2009

Controlling Adult Political Conduct by Holding Children Hostage

During the Civil Rights movement in our country, the state engaged in a hush-hush practice designed to quell any first amendment activities (petition the government for redress of grievances, freedom of press, freedom of assembly, freedom of speech, freedom of religion) of civil rights activists.

We all know about the well-publicized efforts of local, state and Federal government agencies to classify the legal conduct of civil rights activists as crimes in order to silence the more outspoken by arresting, prosecuting and imprisoning them. We also know that these attempts ultimately failed because the government's strategies violated the constitutional rights of the targeted activists, and were effectively challenged repeatedly.

But one practice was not challenged. The practice of removing children from their activist parents in an attempt to control their political conduct. We don't know about it because it worked.

And it works, today, as well.

In 1996, I began publishing my web site, which was one of the first web sites that addressed child welfare abuses. At that same time, I forwarded the argument that as long as activists seeking child welfare reform engaged the issue on the existing terms i.e. Parental Rights vs. Children's Rights, our reform effort would fail. In a contest of these competing interests, Children's Rights would always prevail. So, I redefined our side of the issue to Family Rights. Who could be against the family? This principle stuck, and it has grown to the Family Rights grassroots movement.

This is a chaotic movement, without effective leadership, populated by many damaged people who indiscriminately lash out against friend and foe alike for the smallest real or imagined slight. Whether those people were unstable before the state intervened, or whether the state intervention made them unstable is a question I and my colleagues have debated often, without arriving at a consensus. It is evident that this particular kind of state intervention, more so than any other alphabet state agency intrusion, is emotionally, financially and psychologically devastating to all persons whom the state agency is helping.

I see one of the biggest problems is that these injured souls want reform. They inherently know they and their children have been wronged, but they don't know how or why. They claim that the state's actions are illegal and don't understand when the court says they are legal. They rabidly scream corruption and insist the world believe them because of the horrors they and their children experienced. Their self-professed leaders are angry, and exhort their mob to fight, fight, fight with useless tactics that have the single virtue of making the person feel better, at the expense of alienating the public and incurring retaliation from the courts and agencies.

This retaliation is exhibited by the gag orders I discussed yesterday, and by issuing other illegal orders like ordering parents to take down their web sites which are critical of child welfare agencies and service providers, to stop associating with similarly-minded reform activists, to censor their speech which is critical of the courts or agencies. Case workers, CASAs, GALs, and hostile foster caregivers troll the internet and online groups to find parents and use their political free speech and publications against them in their court proceedings. If the parents attend a public rally or a legislative hearing, these same hostile actors take down license plates and names of attendees from sign-up sheets. The courts allow the parent's political conduct to be used as proof of parental unfitness and lack of compliance with treatment plans. Parents who attend the wrong church have their children seized in order to compel the parents to remove themselves from the membership of the unapproved church.

Retaliation against activists is inevitable in any social reform effort. The powers-that-be want to maintain the status quo, their power base. . .their jobs.  Since the retaliation is inevitable, it should anticipated and exploited to effect the desired reform. History has given us the models, we only need to know and understand them in order to exploit them.

Alas, the current family rights leadership is only able to bitch and piss and moan about the violations of rights. These self-professed gurus don't "get it" and can't see past their own pain and anger. They can't anticipate the retaliation, they can't exploit it, can't enforce their rights and in so doing, they surrender their rights, and their children, and the rights of other activists and their children to the alter of child protection. Not an effective strategy in my mind.

Monday, November 30, 2009

Child Welfare Cases and Gag Orders

There is a certain Florida judge, at least one that I have reliable information about, who issues gag orders restraining parents from talking about the specifics of their child welfare cases, prohibiting them from disparaging or denigrating anyone who has worked on their case as a condition of keeping custody of their children after they win a TPR (Termination of Parental Rights) hearing. In fact, the parents reportedly face threats of contempt and having the entire child welfare nightmare repeated if they dare speak out about their case. Holding children who have not been abused as hostage to protect the reputations of child welfare agency actors and the courts by having their official conduct publicly exposed is shocking. Shocking! 

By way of background, in Florida, it seems dependency hearings are open to the public, but TPR hearings are closed to the public. I've attended dependency hearings in Florida, and they are conducted pretty much the same as in other states. 

I will assume for purposes of this discussion that confidentiality of Florida's child welfare files and TPR proceedings serves legitimate state interests. That is not to say that I necessarily agree with this premise. I simply choose to argue that this confidentiality protection belongs to the parents and the children, not to the state. Consequently, the parent who wins at a termination of parental rights hearing and regains custody of their children possesses the sole right to enforce or waive that confidentiality on behalf of their children. 

However, the states routinely whip out the confidentiality argument to protect themselves from free speech of their victims that would expose their conduct during the administration and adjudication of a child welfare case to  public scrutiny. The parents' attorneys don't even challenge this practice, often advising their clients not to rock the boat, thereby contributing to the conspiracy of silence surrounding what really happens in a child welfare case.  Who could imagine that free speech could be so effectively destroyed on such a wholesale basis? What parent would risk speaking out if their children were subject to arbitrary state seizure, dangerous foster care and termination of parental rights? What a power trip!

Oddly, the law does not support this practice. 

Let's assume, arguendo, that confidentiality does apply to the state workers. The courts have held that "there is practically universal agreement that a major purpose of the First Amendment was to protect the free discussion of governmental affairs." Even confidential proceedings into judicial conduct are not protected from the disclosure and publication of truthful information about their proceedings which are protected by state confidentiality statutes, so how could child welfare workers' conduct be confidential?

But extending the family's confidentiality to the case worker is silly. A better argument would be to assert the privacy interests of the individuals administering the case. This doesn't fly, either. The courts have universally held that individuals acting in their official capacity have no expectation of privacy when they conduct the business of the state. They are conducting the business of the people, using taxpayer funds and the people have a right to know all. Yes, even child welfare workers are subject to public scrutiny, and who better to expose them than their clients?  

But what if we assume they do have a privacy right? Time after time, when the high court has been called upon to consider whether the free exercise of speech under the First Amendment may be curtailed to protect privacy rights, it has not been hesitant in resolving the ostensible conflict in favor of the exercise of free speech. Even when the free speech would harm the reputation of the individual or institution being discussed. The U.S. Supreme Court has firmly established that injury to one's official reputation is insufficient reason for repressing speech that would otherwise be free. So, if case workers get it wrong, we all have the right to know all about it. 

A Florida case actually addresses the validity of a permanent post-judgement gag order, stating Florida law precludes the judge from enforcing the gag order now that he has no jurisdiction over the parties. The appeal was denied because the issue of the gag order was moot. Bottom line, if the case is closed, the gag order is unenforceable. But even if the judge were to attempt to enforce it, he would have to overcome all the barriers to gagging free speech cited above, which would open him to disciplinary action and appeal. 

So, given these facts, I'd tell all. . .  after I got the kids out of the state. After all, it only takes one false allegation to terminate parental rights. 

Friday, May 8, 2009

Foster Care Giver Tizzies

I periodically get mail from foster care givers. They have their own groups online and every now and then one of them will find my letter to foster children on my web site and go into various iterations of tizzies. They'll tell all their foster friends on the groups and they will all contact me to tell me of their outrage, secure that they know more than I know about these children. Like the most recent email eruption I've been receiving from foster care givers. Like Laurel Haper here:
I have read the letter you wrote here http://www.profane-justice.org/html/foster_child.html . Are you saying that every foster child is in a bad foster care environment, and that every foster child is better off with their family of origin? Are you also saying that every foster child is able to reason through their situation and make the best decision? I am just wondering; I have worked with foster children, and have learned some important things about them.
Laurel Harper
Dear Laurel
I am saying that no matter how good the foster home is, the stranger foster care environment is bad for a child.
     Let me ask you, when these children come into your home, do you make that home environment conform to what that child is comfortable and familiar with, or do you make that traumatized child conform to your rules, your culture, your religion, your eating habits, your schedule, your scent, your parenting style?
     In any objective analysis of this child, is it fair to say that this child must deny his own identity, his culture, his persona, his needs, his schedule, his expressions of his love for his parents, his needs and wants to make your job as a parent-for-pay easier for you? Or do you make wholesale changes in your household to accommodate this child's comfort level? If you are honest, you make this traumatized child adapt to your household.
     I am saying the law says every foster child is better off with their family of origin. Studies have consistently proven that it is better for the child that the family is provided with appropriate services and supervision while the child remains in the family home. However, I do acknowledge that warehousing children in stranger's homes is much less labor intensive for the case worker than providing appropriate services and supervision in the family home.
     I am saying that every foster child is emotionally attached to their parents, and despite what any well-intentioned meddler-in-denial thinks is best for that child, interfering with that attachment is the primary cause of "troubled children," "acting out," and reactive attachment disorder.
     And from Mickey, whose apparent intellectual and grammatical limitations obviously reduce her occupational options to performing janitorial services or being a parent-for-pay:
Hi Suzanne,
to be completely honest I take great offense to the letter on your web site. As a foster parent we have had many troubled children in our lives, to this date I don't think there has been one that the parents didn't deserve to have their children removed from the home. Children are a gift from God and should be treated as such. To tell them that all foster parents, case workers, judges, etc are terrible peoples trying to keep them from their mom and dad is an utter [sic] lie. It appears you had a rough time of it when you were a child and I am very sorry you had to suffer through that. No child deserves to be mistreated. I'll close this out now but before I go, I will say that we have adopted two of our little darlings, one full blown meth baby and the other an alcohol and marijuana baby, they are almost 3 years old now and we love them with all our heart. Instead of telling the kids how awful the system is, we tell them of the great love of our savior Jesus
Christ. It is truly amazing how sharing Jesus with these children lifts them up.

Dear Mickey
Actually, I didn't have it rough in my foster home. It was one of the better ones. Despite that, I consider my placement in stranger foster care one of the most traumatic events in my childhood.
     What you don't understand is that foster children must be chameleons in order to feel safe. They conform. Of course sharing Jesus with them lifts them up, because if it didn't, you would disapprove. They already know you disapprove of their tears, of their missing their parents. You disapprove of their parents. You disapprove of everything important in their entire world. You have no idea how stressful that is to a child in a strange place, deprived of the only things he loves and knows.
     You are the authority figure, and you have turned their world upside down when you tell them their parents aren't worthy of their love. I'm sure you never used those words, but that's what they hear when you say, "Your parents love you but they aren't good parents and can't keep you safe like we can."
     You don't see the real child. You see the facade that the foster children wear in self-defense. They can only take so much conflict, and since their entire existence is now in conflict with their understanding of their world, their family and their identity, they do what they can to minimize it. They conform by submerging who they are. This can never be healthy for a child.
     No wonder every parent who is reunited with their children says they aren't the same children they were before they were taken. No wonder, years after reunification with their families, former foster children run screaming to hide in a closet when someone knocks at the door.
     Mickey, removing a child is not supposed to punish parents for being imperfect, so asserting that they "deserve" to have their children removed is inconsistent with the intent of the law. And whether the parents "deserve" it or not, do the children deserve what they get?