"I feel that crime has taken us from “normal” business of Caveat Emptor [buyer beware] to survival of the fittest. If I were king, I would focus on political and corporate criminals, which are running amok. The few we catch make no dent or mar the surface of the storm below. The storm is not brewing, or "in the making,” it is a horrible churning cauldron of bad people who have learned how to work the system, and they play it like a fiddle." Trader Ed
Monday, November 29, 2010
Wednesday, November 24, 2010
As published in ElderLawAnswers.Com
A new study has found alarming rates of undetected elder abuse, neglect and exploitation. Although limited to New York State, the study suggests that elder abuse is far more prevalent than was previously known. For example, the study found that for all types of elder abuse, there are 23.5 unreported cases to every one reported to any agency.
Researchers conducted random telephone surveys of 4,000 New York residents 60 years and older, and compared the occurrence of elder abuse uncovered by the surveys to the numbers of cases reported to adult protective services, law enforcement and other officials or providers. In the case of financial exploitation, the study found 43.9 self-reported cases to every one reported to an agency. The ratio of neglect cases was even higher, with 57.2 cases going unreported for every one that comes to the attention of any services system. A previous study reported by ElderLawAnswers found that for each case of abuse reported, there are at least four that go unreported.
The National Adult Protective Services Association, which is publicizing the study's results, said that the actual prevalence of elder abuse in the total older population may be even higher because the study did not include older persons unable to participate in a telephone survey.
Interestingly, while emotional abuse is the most common form of elder abuse reported to agencies, followed by physical abuse, the self-reported study found financial exploitation to be the most prevalent form of elder mistreatment.
The Association, which represents Adult Protective Services professionals, said that the findings "underscore the urgent need for Congress to appropriate funding for the Elder Justice Act, the first and only comprehensive federal law addressing elder abuse. The Act authorizes up to $100 million in funding per year for state and local Adult Protective Services (APS) Programs, which could provide an estimated 1,700 protective services investigators throughout the country. As the number of seniors, and in particular the number of cases of financial exploitation, rises exponentially, APS Programs throughout the country are being slashed because of faltering state budgets, severely compromising their ability to investigate elder abuse and to take measures to protect frail, often extremely vulnerable older victims."
The Association notes that older persons, as well as younger adults with disabilities, who are victimized by violence, neglect and exploitation are the only category of crime victims who receive no dedicated help from the federal government. The Elder Justice Act was enacted as part of the health reform legislation, but Congress has not funded it.
The New York State Elder Abuse Prevalence Study is the second-largest study ever conducted on the prevalence of elder abuse and the first statewide study to compare self-reported data to reported case data over the same time period. The study's contents are not yet available, pending release by New York State Office of Children and Family Services. The study's authors presented their results at a recent conference on aging.
November 19, 2010
San Bernardino County Sentinel
When Janis Schock learned that her complaint of conservator wrongdoing, submitted to the California Professional Fiduciaries Bureau, had been closed without an investigation taking place, she was dumbfounded. The communication from Angela Bigelow, analyst and sole full-time employee of the Professional Fiduciary Bureau (PFB), stated that the court must first make a determination of wrongdoing before the PFB could take action. Janis Schock wasn’t so sure this was true.
As it turns out, Schock was correct.
The Professional Fiduciaries Bureau is a relatively new addition to consumer oversight agencies and is lodged in the Department of Consumer Affairs. The PFB was established by an act of law in 2006, following public outcry engendered by a 2005 Los Angeles Times series which revealed questionable practices by California conservators, who were at that time unlicensed. The bureau, as written into law, is mandated to license professional fiduciaries, to investigate complaints and, where appropriate, to refer complaints to law enforcement. The bureau is also empowered to revoke a license based on complaints and to take action on unlicensed activity. The Professional Fiduciaries Act defines a professional fiduciary in this manner:
“Professional fiduciary”means a person who acts as a conservator of the person, the estate, or person and estate, or guardian of the estate, or person and estate, for two or more individuals at the same time who are not related to the professional fiduciary or to each other.
Conservators are generally appointed through court proceedings when there are allegations that a person is lacking capacity; in other words, becoming forgetful or otherwise unable to handle his or her affairs. These allegations need meet no standard of proof, which provides an opening for abuse of process. The Government Accountability Office recently released a report citing multiple instances where a conservator had abused his powers to the detriment of the conservatee. Several grassroots groups have sprung up to address the issue of abusive conservatorships, which are reported to be taking place countrywide.
The Bureau did not open its doors for business until the Summer of 2008. Governor Schwarzenneger, who had signed the bill establishing the PFB in 2006, subsequently line- item vetoed the funding for the infant agency two years running. In an interview with this reporter in 2008 for an article published in The American´s Bulletin, Assemblyman Dave Jones, who was a primary author of the bill, voiced his surprise that the Governor acted to gut these bills without any such recommendation from his own party. “What is particularly troubling is that this is a cut that was not on the Senate Republican cut list. The Governor went out of his way to make that cut.”
After two years in operation, the bureau appears to have fallen short of its mandate and is providing less than comprehensive oversight of the fiduciaries it is mandated to watchdog.
Janis Schock had complained that a San Bernardino conservator, Ron Olund, had breached his fiduciary duties to Maxine Douglas, who is Schock’s mother, allowing numerous bills to go unpaid and utilities to be shut off. She reported that Douglas’s home nearly went into foreclosure as Olund neglected to pay the home association fees for several months. She also alleged that Olund had deliberately isolated her mother from family and friends.
The Douglas conservatorship is being heard in San Bernardino Probate Judge Michael Welch’s court. A recent Sentinel article raised concerns that Welch may have perjured himself in another conservatorship proceeding. Other questions have arisen as to Welch’s property dealings and Welch has refused to respond to queries as to whether he or other, undisclosed parties are paying back his multiple home loans.
The closing of Schock’s complaint by PFB analyst Bigelow was brought to the attention of the Department of Consumer Affairs. Consumer Affairs legal counsel Gary Duke expressed dismay at what Bigelow had done and quickly concluded that she had signed off on the complaint “in error.” The Schock complaint was subsequently reopened.
The complaint was then assigned to an investigator within the Department of Consumer Affairs. Janis Schock reports that investigator Jane Valdez subsequently told her that no action would be taken. According to Schock, Valdez did not deny the allegations contained within Schock’s documented complaint. Schock was told that her complaint would go to file, to be reviewed should other complaints come in on Olund which “show a trend of misconduct.”
Schock questions the thinking behind this. “If someone drives drunk and runs someone down, do they not get prosecuted until they do it a second or third time?” she asks.
The Sentinel has reviewed actions taken by the bureau as well as interviewed a number of complaints. A picture has emerged of an agency which is under-funded, under-staffed, and has consequently failed to perform the duties it is chartered to attend to. In the face of inquiries from the press and public, it has repeatedly attempted to obscure its activities and the outcome or premature closure of its investigations.
The PFB, which currently has one full time employee and one half time bureau chief, maintains a board of seven members. At the present time, two professional fiduciaries — Lisa Berg and Daniel Stubbs — sit on the board, as well as supervising probate investigator Sharon O’Neill and two public members. Two seats remain vacant, including a seat reserved for a representative from a nonprofit organization advocating on behalf of the elderly. A recent board meeting found the members focused on concerns about raising more revenue for the bureau, which has taken out two loans totaling over a million dollars in order to stay solvent. The bureau reported that $357,000 for the current year covered only two staff positions and that a mere $50,000 was allotted for enforcement. The minutes reflect concerns that “one big case would break the budget.”
In its first annual report, the PFB reports making no investigations and no referrals to law enforcement. Adding veils of obscurity to its functioning, the PFB refused to supply this information when the Sentinel inquired as to these statistics. Rather, legal counsel Gary Duke stated that this information was not discloseable, citing government code 6254 (f). When the Sentinel persisted, the PFB stopped responding to Public Records Act requests. The Public Records Act mandates a response within twenty days.
In fact, the information which Gary Duke refused to disclose is readily available to the public in the DCA’s annual report,which is on line.
Promises by the DCA to produce documents have also gone unfulfilled. Last summer, the Sentinel had requested input from the DCA as to the cost to the state of the bureau’s efforts with regard to Redlands-based conservator Melodie Scott, who has been the subject of numerous complaints from family members of individuals under her care. Scott’s professional fiduciary license was the first and only such to be denied by the head of the Department of Consumer Affairs after contested hearings last year in Oakland Administrative court. In a response in August of this year, DCA Press Officer Russ Heimerich promised to research the financial impact to the state and to respond with the requested details. At the time of going to press, he has not done so.
Joseph Quattrochi, Jr., met with a similar lack of accountability in his dealings with the Professional Fiducary Board. His complaint to the PFB alleged criminal misconduct by Melodie Scott and was submitted over a year ago. He states he has received no response whatsoever from the bureau. The Sentinel has reviewed a number of emails sent by Quattrochi to Gil DeLuna, head of the PFB, spanning several months, in which he repeatedly requested a response to his complaint and also expressed bewilderment as to why Melodie Scott was not in jail. Quattrochi, whose father had been under a conservatorship with Melodie Scott, has lodged a lawsuit in federal court against the former conservator.
Gina Rilke, whose husband was also under a conservatorship with Melodie Scott, has expressed frustration that her report to the Professional Fiduciary Board also went unanswered. When the Department of Consumer Affairs, via Gary Duke, declined to state whether or not the agency had contacted law enforcement when Melodie Scott persisted in advertising herself as a professional fiduciary after her license had been denied, Gina Rilke went to the Redlands Police to make the report. In a Catch-22 like maneuver, she was then informed by the responding officer, Eric Strobaugh, that only the DCA could make such a report.
The Professional Fiduciaries Act details that such advertising by an unlicensed party constitutes a misdemeanor.
Rilke reports that in a recent conversation with Duke he told her that her complaint to the bureau is moot at this time, given that Melodie Scott is unlicensed. Misstating the powers of the Professional Fiduciary Bureau, which include contacting law enforcement, Rilke writes that Duke told her that “denying/taking away a license is really all the power the Bureau has to discipline any violations.” Says Rilke: “I told him that I had tried for three hours to have a police report filed, but the officer insisted that it was the bureau’s responsibility to follow up on [such] violations—Mr. Duke said that he had heard from others that officers at the Redlands police department had told them the same thing. Duke said it really is the law enforcement agency’s responsibility to deal with it, but they don’t because they have other things that are more pressing from their point of view.”
Rilke also has alleged Scott stole more than sixty thousand dollars during her tenure as conservator of Rilke’s husband, who is disabled.
Gary Duke has informed the Sentinel that the Bureau made an “economic” decision and chose not to investigate the criminal allegations contained in the numerous reports the bureau received on Scott. “We thought we had enough on her in terms of lying on her application,” he stated in a recent interview. By declining to investigate criminal allegations, the bureau lessened the likelihood that she would be prosecuted in criminal court.
Scott’s license denial is under appeal and is scheduled to be heard in Sacramento Superior court in December. Sources close to Scott state that she remains confident that the judge will grant her a license.
Lauren Collins also reported Conservator Stevan Chandler to the Professional Fiduciary Bureau last June and received no response. In the intervening months, Chandler has informed the family that they have less than six months before they lose their home, due to a reverse mortgage placed on the home to pay for the conservatorship. Jeanette Spence, who has multiple sclerosis, has never had a capacity determination and the family has insisted that the conservatorship is completely unnecessary. While physically disabled due to her illness, Spence was alert and lucid during an interview with the Sentinel last year and clearly stated she wanted the conservatorship ended. “Chandler just wants my money,” she said.
Carolyn Perkins, whose parents were under a conservatorship with professional fiduciary Linda Banta has told the Sentinel that she was discouraged from filing a complaint by former Professional Fiduciary Bureau employee Janice Nance. Perkins alleges Nance told her it wouldn’t make any difference. Says Perkins, “Janice very definitively told me not to send a complaint to her but to complain to the judge. I was devastated at the time because I had carefully read the code of ethics and realized conservator Linda Banta had purposefully, deliberately and egregiously violated them, particularly with regard to emotional well-being and family connections.”
Echoing widespread concerns which resulted in the California Legislature passing the act which called the bureau into being, Perkins said, “Of course, I didn’t bother to write the judge because the judge has been complicit all along.”
Monday, November 15, 2010
Clara G. Fernandez who is the inspiration behind this blog celebrates her 94th birthday after losing all her civil rights, and immigrating for the 2nd time in able to escape oppressive government who seemed to condone the confiscation of everything she stood for after a generation of toil, sacrifice and hard work....
I really thank the G-d above for having allowed this amazing woman so many years who has taught me never to give up and for having given an example that will live forever in the many lives that she has touched.
Clara left the United States shortly after receiving this letter of consfiscation, she was under house arrest having lost all civil rights, rights to travel, rights to enjoy her retirement when the American Dream turned into a hellish nightmare and was forceful separated from her husband for purely financial reasons. Her husband retired Dr. A.J. Fernandez M.D. did not survive the stress of the situation and died shortly after being separated from his wife Clara of 58 years.
Investigative reporter Janet Phelan is working on an article concerning the reports that gone into the California Professional Fiduciaries Bureau concerning guardian abuse. Would the California members who sent in such complaints please contact her via email? at email@example.com
She needs to know if your complaints were responded to and if so, what did the Professional Fiduciaries Bureau say.
We would appreciate hearing from you soon!
Janet Phelan & Editor, E.A.
Saturday, November 13, 2010
Elder Abuse Victims Act of 2009 Needs Senate Vote & Obama’s Signature to Pass
Rep. Joe Sestak (D-PA) was recently defeated in Pennsylvania’s senatorial race. His Elder Abuse Victim’s Act was passed by the U.S. House of Representatives. Here’s the information:
“House of Representatives HR 448: Elder Abuse Victims Act of 2009: To protect seniors in the United States from elder abuse by establishing specialized elder abuse prosecution and research programs and activities to aid victims of elder abuse, to provide training to prosecutors and other law enforcement related to elder abuse prevention and protection, to establish programs that provide for emergency crisis response teams to combat elder abuse, and for other purposes.
"Feb 11, 2009: This bill passed in the House of Representatives by roll call vote. The vote was held under a suspension of the rules to cut debate short and pass the bill, needing a two-thirds majority. This usually occurs for non-controversial legislation. The totals were 397 Ayes, 25 Nays, 10 Present/Not Voting”
[see link: http://www.govtrack.us/congress/bill.xpd?bill=h111-448]
The above is one of many already passed Congressional bills awaiting passage by the U.S. Senate. Once HR 448 is passed it can be signed into law; its Democratic legislation introduced by Democrat Sestak and passed by a Democratic House of Representatives and it's now awaiting a Democratic Senate majority to vote on it. Then it goes to the Democratic president to sign it into law.
IMPORTANT: We STILL have the same Democratic leadership and the majority until January 1, 2011 that we had prior to the recent election.
They are said to be the lame duck Senate but, to we elder advocates, they are an important group of politicians. They are our duly elected and functioning government and they work for we tax payers & elder advocates....for now. If they want our votes in 2012, they can start to work on obtaining our votes right now by passing HR448.
Most of you will agree with the following: we want our elderly protected.
We have to start somewhere, folks, so let’s be realistic. There is no panacea, no magic bullet to protect senior citizens or any other disenfranchised group. Social change happens slowly. Laws will be built out of horrible and imperfect situations like those we have encountered; it will be trial and error, unfortunately, and this evolvement may span decades.
In fact, in 2002, the American Medical Association said it would be 30-40 more years before awareness about elder abuse reached what it was then for child abuse. That’s pretty scary, isn’t it? If everyone in America knew what we know about elder abuse, neglect and exploitation, they would take this more seriously. However, we were the unwillingly “chosen”…we KNOW and because WE KNOW the responsibility falls on us to act.
We need social change and yet "we" don’t want health care or Wall Street, etc. reform with many saying government will be "too big." Let those of us who have had our family members slaughtered by greed keep this in mind when Republicans say they want less government. Could they mean they want less oversight?
Those of us who have seen what leaving the foxes guarding the chicken coup can bring about ought to have some big issues with less oversight. And, perhaps, it may be fairly easy to surmise a possible reason why the Republican Party poured money into the Pennsylvania election to make sure Joe Sestak was defeated.
Let’s get real about this political stuff for just a moment. It took eight years to run the country into a sewer. We elected a man from Chicago, not Oz or the Emerald City, as president. But, we really did expect him to be a magician not a politician, didn't we?
We are a nation that seeks immediate gratification and not the daunting task of commitment to social change and self-examination. Because social changes were addressed the “dogs of war” have been set upon Obama and he has been called a “socialist.”
The truth is our government has two huge socialist programs that have been and remain successful for over 60 years. They are Medicare and Social Security. Do you want to change them or remove them because they are socialist? Do you know that every country in the world has socialistic programs that were brought about for a more humane society?
Are social workers socialists? They're certainly highly respected professionals and they’re in the trenches with us...thank God for the ones that were with me in Walterboro, South Carolina when my father met with an untimely end. Paradise Costs would have never been written if it weren't for them. I remember one named Linda who said to me: "Irene, don't you see why this is happening to your family? You're a writer; the pen is mightier than the sword. Write about this." She encouraged me to reframe what was happening to my family under some ugly and dire circumstances.
Most social workers urge us to change, too. They want us to understand that if we keep doing the same thing, the same thing is going to happen. We can sit here at this blog and discuss our personal tragedies, try to re-invent "the wheel," we can think magically about the future, we can bicker, we can attempt to infuse our fractured and dysfunctional society with fantasy about our imperfect union or pie-in-the-sky thoughts about capitalism with morals or we can do something and comfort ourselves by knowing we tried everything we could to make a difference.
Think please? We have 3 Democratic legislative bodies (House, Senate and President) and some already written legislation, let’s pour the pressure on the lame ducks to “grow a pair” and do the job we elected them to do.
Yes, elder advocates will argue that this is wrong and that is wrong with the above legislation just as they did with the Elder Justice Act…but, listen, it’s a start and we have to start somewhere and why not now?
It’s really, really simple and it's in this moment.
You’re part of the problem or you're part of the solution.
Pick a side right now.
People who want to be part of a possible solution click on this link http://www.senate.gov/general/contact_information/senators_cfm.cfm
and look up your senators’ phone numbers (you have 2 U.S. Senators)
and call his or her office every day until December 31, 2010 if need be
and tell him/her to vote “yes” on HR 448. Please ask your friends to do
Here’s the White House’s number: 202-456-1111;
call the President's staff everyday...see above.
I will be calling my senators (both Democrats), tomorrow and everyday from now until December 31, 2010 to say, “Please pass HR 448 or I'll never vote Democrat again and I can promise you I will tell everyone of the 78 million baby-boomers I can possibly reach that you and your colleagues turned your backs on us.”
And while I have your attention can I please tell each of you something else that's critically important?
Please don’t view yourselves as victims. Empower yourself and see yourself as a pioneer, a champion of the elderly and an advocate taking a proactive stance.
Every one of you is an awesome spirit having the human experience that's been tainted for some reason by this horrendous social ill called elder abuse. Reframe it?
You are more powerful than you know. God, in His wisdom, has chosen each of us to make a difference and lead the way by sharing our expanding consciousness about elder care issues. Do it!
And as the famous poem says, "...whether or not it is clear to you, no doubt the Universe is unfolding as it should. Therefore be at peace with God, whatever you conceive Him to be and whatever your labors and aspirations, in the noisy confusion of life keep peace with your soul. With all its sham, drudgery and broken dreams, it is still a beautiful world. Be careful. Strive to be happy."
For those who still need a little more inspiration, please see this link & have your speakers on:
Irene A. Masiello
Author: Paradise Costs-A Victim’s Daughter
Fights Back against Elder Abuse
Afterword: Rabbi Bennett Blum, M.D.
©Copyright November 2010-Irene A. Masiello-All rights reserved
"Never doubt that a small group of committed citizens can change the world;
indeed it is the only thing that ever has" - Margaret Mead
Cross posted from the San Bernardino County Sentinel
November 12, 2010
by Janet C. Phelan
In two bold moves, akin to a chess strategy in which a player clears the board of his opponent´s pieces, probate attorney J.David Horspool has asserted his authority over a conservatee by removing him from his home and wife and then evicting the son of the conservatee from his residence. In this circumstance, the conservatee is Horspool´s own father, Raymond Horspool Sr. and the eviction was executed on Horspool´s younger brother, William Horspool, wife and three children.
According to Raymond´s wife of nine years, Winifred Horspool, she was neither consulted nor given prior warning that her husband was going to be taken from her. Winifred Horspool says her husband, who is ninety years old, was taken from their Grand Terrace home when she was out running errands
.In a recent email to his sister, Barbara Howard, attorney Horspool justifies his removing his father from home and spouse, claiming that Winifred was on the verge of divorcing Raymond. In an interview with Winifred Horspool last week, she firmly denies this.
“We were going to spend the rest of our lives together,” she said. She denied that caring for her husband, who suffers from memory loss, was a burden. She stated she is at a loss as to how to bring her husband home. “There is nothing I can do about this,” she said grimly.
Attorney J. David Horspool has been chief counsel for conservator Melodie Scott, whose fiduciary license was recently denied by the State of California.
The Horspool conservatorship first caught public attention back in 2006, when the Los Angeles Times published an article detailing the schism that had resulted in the once close Horspool family, due to the friction generated by the contested conservatorship. A bid by family members to end the conservatorship failed and the dispute then focused on a home, located on Barrett Road in Riverside, which the elder Horspool had granted to his son, William, back in 2003, prior to the initiation of the conservatorship.
However, in 2003 J. David Horspool had changed the terms of the Trust, removing his father as Trustee and appointing himself and a brother, Raymond Jr. as co-trustees. Barbara Howard alleges this was done without informing the other siblings and that David Horspool exercised undue influence upon the father. William Horspool has stated that the change in the legal documents was made to ensure that the property remained in David Horspool´s control.
David Horspool characterized his brother William, whom he referes to as “Billy” and his sister Barbara as “extremely disgruntled siblings who are in cahoots to defraud their father of his property.” He said that William “’borrowed’ over $100,000 from Dad to support his day-trading addiction [and] refused to pay rent to Dad when Dad asked him to do so while Dad was still competent. " Billy and Barbara are a couple of bitter people who just don’t acknowledge their wrong-doing. Barbara perjured herself in an attempt to keep Billy in the house he stole from Dad. Billy continues to claim that everything in that house is his, even though our mother made some very specific gifts and Dad has always maintained that he would honor our mother’s requests. Barbara continues in her unreasonable and blind hatred of me, when she should be looking at Billy because of what he did to Dad. Billy refused to acknowledge his wrongdoing, and continues to blame everyone but himself. Their claims have no merit, and the stupidity of them is apparent to anyone with any knowledge of the law. So now he sits at home all day, day-trading, losing thousands of dollars in the process.”
David Horspool said that his brother was now allowed to visit their father “with a monitor approved by Dad’s court-appointed attorney.”
“With respect to the assertions that I changed the terms of the trust without telling anyone, that is not accurate.” David Horspool said. “Dad made the decision to resign as trustee and allow my brother Ray and I to deal with Billy regarding his purchase of Dad’s house. None of the other children were informed of the change as it was none of their business. I never tell the children of my clients when their parents change the terms of their living trust. If the parents want to do so, that is their business, but I don’t, as to do so would violate the attorney-client privilege. So for Barbara and Billy to make that claim reveals the depth of their ignorance. Barbara doesn’t know what “undue influence” is. She makes the charge, but can’t back it up with any facts.”
In his communication with the Sentinel, David Horspool did not reassert his earlier suggestion that Winifed was intent on divorcing his father, but said that his brother William and sister Barbara were in no position to know Winifred’s true sentiments. He acknowledged that his father’s relationship with his stepmother was continuing. “First, neither Billy nor Barbara would know what Winifred was thinking six months ago, as neither of them were around,” David Horspool said. “ Second, Dad has not been cut off from Winifred; she goes to visit him every day, or almost every day, at his current residence. “
The eviction of William Horspool from the Barrett Road property, where he and his family had resided for eleven years, was originally ordered by Judge James Michael Welch, who sits on the probate bench in San Bernardino Superior Court. The eviction was appealed and a stay was granted. The case then returned to Welch. Judge Welch had previously issued a restraining order against William Horspool after he took photographs of his father, which allegedly reveal that the conservator had not properly cared for him.
Welch ordered the photos destroyed and in a highly unusual action, issued the permanent restraining order without ever having a hearing.
William Horspool has questioned the constitutionality of such an action by Welch. Efforts to have Welch removed from the case have not been successful. Barbara Howard alleges
that Welch committed perjury in his answer to legal papers which were filed to have him recused, i.e., removed from hearing the case.
The declaration in support of the recusal alleges that Welch has had a personal association with Tom Dominick. Dominick is the attorney for trustee J. David Horspool and the elder Horspool´s conservator, his daughter, Margaret Updike.
In his formal answer to the motion to have him removed, Welch has denied this association with Dominick. However, Welch failed to disclose that Dominick sits as a judge pro tem in Welch´s own courtroom, which would de facto render them colleagues.
In addition, Welch stated in his answer that he had never ruled on a previous 170.6 (this is also a motion to recuse) and that Barbara Howard had not filed that motion. In fact, Barbara Howard had filed the 170.6 on April 16, 2009.
In a motion to set aside void judgment, filed on August 5, 2010, Chris Carter, attorney for Barbara Howard, declared the eviction order to be “void on its face,” as Welch had issued the order when the matter was under appeal. Judge Welch denied this motion.
William and Kelly Horspool and their three children, who are ages nine, seven and two years old, are now homeless.
When asked how she thought her husband was faring in the assisted living facility, Winifred Horspool chose her words carefully. “My visit with him was very short,” she said. “It was hard to tell.”
Concerns about Judge Welch´s financial dealings were revealed in a Sentinel article published in September of 2009. Welch has declined to answer questions concerning whether he or an undisclosed party is paying back his several home loans and also declined to answer questions about property transfers in Riverside County, which were tracked to a James Michael Welch Trust.
The Sentinel’s inquiry of Judge Welch at his courtroom was met by a referral to the presiding judge of the San Bernardino County Superior Court, Douglas Elwell. Elwell’s secretary, Aalvina Hollensbe, told the Sentinel Elwell would not be available for comment until November 16.
David Horspool, who frequently appears before Welch, leapt to the judge’s defense.
“Billy and Barbara’s problem is that they think the unfavorable rulings they have gotten from Judge Welch is evidence of bias on his part, instead of a total lack of facts to support their claims, and a total mischaracterization of the law. Attorney Carter has been wrong continually. He can make and has made a lot of wild charges against Judge Welch, none of which have been found to have any merit whatsoever. “
Horspool said Welch’s denial of having been previously subjected to a recusal motion by his sister was not a substantial issue.
“Judge Welch has done nothing wrong,” Horspool said. “He is familiar with the case, and we are not going to allow Billy or Barbara or their attorney to engage in “judge-shopping”, as they are now apparently attempting to do. Billy and Barbara would like a chance to con a judge unfamiliar with the case, but that isn’t going to happen. Very early on, we tried to sit down with Billy and Dianne [another Horspool sibling] and Barbara, but they were not interested in working within the family to do what was best for Dad. So after spending thousands of dollars on attorneys’ fees, we have what we have. We are not going to agree that Billy can go back into Dad’s house. He let it run down while he was living there. Billy continues to misuse the court system, continuing to make false claims in court filings. So no, I am not interested at this stage in turning the clock back. Billy is a liar and a con man. Unless he wants to admit his wrongdoing, there is nothing to say to him. Judge Welch has nothing to do with who sits as a temporary judge in his courtroom when he is gone. That decision is made by someone else. To try to parlay sitting as a temporary judge into a personal relationship with the judge once again reveals Attorney Carter’s ignorance. All of Attorney Carter’s attempts to knock Judge Welch off the case were rightfully denied.”
Thursday, November 11, 2010
Have you or a loved one been the victim of elder abuse — financial scams or otherwise? The Bee is looking for elder abuse victims and their families who are willing to tell their stories for possible use in a story about these crimes and what can be done to minimize the risks of becoming a victim.
Monday, November 8, 2010
It is April of 2010 as Courthouse News Service reports the allegations detailed in a civil complaint filed by Children's Rights in the state of Massachusetts. Named as among the defendants are Governor Deval Patrick, state Health and Human Services Secretary Judyann Bigby, and Angelo McClain, commissioner of the Massachusetts Department of Children and Families. The article explains:
Among the horror stories detailed in the 78-page complaint are those of Dontel Jeffers, who died at 4, allegedly after his foster mother tied him to a radiator and kicked him until his bladder burst; Acia Johnson, who died at 14, allegedly after her mother's boyfriend lit their house on fire; Isaiah Barboza, 4, who was hospitalized for second-degree burns from being scalded with boiling water; and an unidentified 4-year-old, who needed skin graft surgery after his foster mother burned him with a hair-straightening iron.
"The attorneys say children are placed in foster homes that the state fails to monitor, and that this practice has been common for decades," the article explains.
More to the point, the 78-page Civil Complaint notes that: "DCF has not implemented the reforms necessary to remedy the severe and persistent legal violations within its foster care system, despite its longstanding knowledge of these systemic ills."
"A federal appeals court heard arguments Tuesday on whether to reinstate a lawsuit that alleges major problems with Rhode Island's foster care system," reports NBC affiliate channel 10.
The lawsuit alleged widespread abuse and neglect of children in the state's legal custody. But a federal judge dismissed the case, saying that he didn't believe the children's interests were being adequately represented. The Attorney General's office urged the court to uphold the dismissal.
The Associated Press reports that: "A judge has ordered Kentucky officials to release documents related to the death of a 20-month-old boy who was in the state foster care system when he died."
Circuit Judge Phillip Shepherd ruled that the Attorney General's office was wrong when it said that records related to the death of Kayden Daniels were confidential, saying there was no basis for withholding the documents.
"El Paso County will pay $300,000 to the mother of a 2-year-old girl who died in foster care," reported ABC affiliate Channel 7 News of Denver.
Jules Lynn Cuneo, 36, was convicted of child abuse and reckless manslaughter for the child's death. Prosecutors said the foster mother threw the girl across the living room, causing fatal injuries when she hit her head on a coffee table.
"New developments in a class action lawsuit against Oklahoma's Department of Human Services," reports FOX 23 of Tulsa. Attorneys are asking the Governor's office to turn over records of caseworker workloads.
The suit alleges that DHS routinely places abused, deprived and neglected children in "unsafe, unsupervised and unstable situations" where they are at risk of suffering further abuse and sometimes death.
The Athens-Banner Herald reports that: "New York-based Children's Rights claims in a new report that Georgia has relaxed monitoring and enforcement of the private agencies it hired to provide homes for foster children and that abuse and neglect have risen among foster children in Atlanta."
An Associated Press article issued in April ominously reports: "The state office that oversees Georgia's foster care system consistently excuses serious and repeated rule violations that jeopardize children's health and safety, according to an investigation by The Atlanta Journal-Constitution."
The newspaper found that "fights, sexual assaults, abuse by foster parents, escapes and suicide attempts occur with regularity at many of Georgia's 336 private foster care agencies, according to a review of more than 1,500 state reports and investigations."
Nevada's Newsradio 840 KXNT reports: "The Clark County Department of Family Services is facing a lawsuit over the treatment of 13 foster children in its care. The suit, filed this week in federal court by the National Center for Youth Law, seeks class-action status for all foster children in the county. It accuses the county of failing to provide proper medical care and mental health treatment, and failure to investigate allegations of abuse and neglect."
The Los Angeles Times reports: "Responding to the killing of a 2-year-old foster child this month, Los Angeles County supervisors Tuesday voted to develop an investigations unit with the power to end contracts with troubled foster family agencies such as the one responsible for the child's care."
The paper explains that Viola Vanclief was battered to death while under the care of "an agency with a history of poor supervision and financial mismanagement." United Care, which oversees 88 homes with 216 foster children, "has been repeatedly cited in recent years after caregivers choked, hit or whipped their charges with a belt."
Detroit's WXYZ news reports: "For several months, the Action News Investigators dug deep into Michigan's tragically-flawed foster care system. During our investigation, we uncovered the heartbreaking story of a 10-year-old boy who starved to death while a facility banked cash to care for him." The foster home that young Johnny was in raked in about $12,000 a month from the state for his care.
Johnny's mother, Elena Andron, "dedicated her life to caring for her wheelchair-bound son," and she turned to the Michigan Department of Human Services for help, "a decision she will regret for the rest of her life," notes the WXYZ News report.
"The state is quick to take kids from parents and put them in foster care, especially poor parents. The state makes it very hard to get them back. Experts say the state has a financial incentive to keep kids away from their families," the report concludes.
THE STACKED DECK
An article in the News-Enterprise reports on a "Model Court" being established in Hardin County, Kentucky, to "remove the adversarial approach parties assume in family courts."
The change stems from what reporter Bob White describes as "claims of social workers falsifying evidence to paint parents in a negative light," as well as reports of fast-tracked adoptions, ill-conceived terminations of parental rights and retaliation by social workers against parents. "Dozens of parents alleged victimization by systems geared to protect and preserve the family unit, including child protection," White explains.
These accusations found their genesis in a report entitled "the other Kentucky lottery: Child Protection and Permanency for Abused and Neglected Children in Kentucky in 2005," authored by the National Institute on Children, Youth and Family's and Kentucky Youth Advocates.
The report identified three factors that in combination may often serve to "stack the deck" against the most well-meaning and determined of families: (1) very rapid investigations, which may lead to the premature removal of children, (2) the lack of services provided to families, and (3) the sometimes unrealistic case plans developed by caseworkers that included goals that seemed impossible for many families to meet.
These charges led to a follow-up investigation by the Office of the Inspector General, which described a culture that "thrived on the power of controlling certain families, including but not limited to the ultimate exercise of power - facilitating the removal of children from their biological parents and the termination of parental rights."
The OIG report found that "documentation was omitted or added to case files to intentionally mislead the court." In some cases, this was to assure children were returned to their biological parents while in other cases it was reportedly to assure that the Judge would rule for termination of the parents' rights.
"Policy was applied inconsistently in determining whether a child should be removed from the biological parents' home, whether children were placed with a relative, or if siblings were to be separated," the Inspector General found.
"Workers respond aggressively to any perceived challenge to their actions. For example, biological and foster parents complained children were removed from their home because they 'talked back' to the workers," the report explains.
The Inspector General's report explained that: "social service workers have boasted about making it difficult for clients to work with DCBS staff." Beyond that, social service caseworkers "have laughed at parents as they advised them they were removing their children and during the removal process." The report continues on to explain that:
One social service worker struck and cursed a biological parent during a visit with his child. The worker then entered a detailed service recording in the client's file documenting the parent's aggressive behavior, but failing to document her own use of an obscenity toward the client or that she struck him in the chest with her hand.
Some of the caseworkers accused of wrongdoing retired, while others continued to work in other jurisdictions, performing the same duties. Some were reprimanded, with written blemishes added to their personnel files. None, however, were fired.
"None were prosecuted criminally, even though evidence supported claims they had destroyed countless lives and torn families apart without warrant," White explains.
"Bill Mitchell knows how difficult it can be to get your kids out the state's hands. He had to fight all the way to the Michigan State Supreme Court to get his three boys back," explains WXYZ's investigative reporter Ann Mullen.
His boys were living with their mother when they were taken. Mitchell tried to get his boys, but CPS had other ideas. The state asked the court to terminate his parental rights, primarily because of his finances. "I have the right to choose where I want to work," says Mitchell, an engineer who works at Wal-Mart.
A juvenile court judge terminated his parental rights, and, incredibly, the Michigan Court of Appeals upheld the decision. Mitchell, with the assistance of the Parent Representation Project at the University of Michigan Law School, appealed his case to the Michigan Supreme Court, which eventually overturned the rulings, returning his sons to him after three years.
The Supreme Court adopted the dissent in the lower court's ruling, which read in part:
the court was also critical of respondent's choice to work at Wal-Mart rather than seek employment as a chemical engineer. While one may speculate as to whether there are employment opportunities for inexperienced chemical engineers, the sole focus of the court should be whether respondent has any legal source of income, whether that income is adequate to care for the children and whether it will likely be used for that purpose. The fact that respondent could have potentially earned a greater income does not automatically indicate that his income was inadequate.
"It wouldn't have mattered what I said or what I did, they had already determined their course and now we were just going through the motions," says Mitchell, who didn't get a court appointed lawyer until nine months and three hearings into the case.
"He's one of the most outstanding parents ever to have been run through a termination preceding, and if it can happen to him, it can happen to anybody," says attorney Elizabeth Warner.
"Termination of parent rights is very high in Michigan," says Warner. "But it's also very high nationwide and it happened because of some laws that were passed by the federal government and encouraged states to terminate parental rights more often than they used to and promise to send them money if they would terminate rights and have the children adopted."
As few cases rise to this high a level of appeal, for all of his suffering, Bill Mitchell and his three sons may be considered as "fortunate" for having ultimately prevailed.
The problems with legal representation for parents have long been documented. A report issued by the office of the Public Advocate for New York City notes that the "system is now in severe crisis." The report continues on to explain:
The reimbursement rates are grossly disproportionate to the cost of maintaining a law practice; the caseloads are impossibly high; and the investigative, counseling and support services necessary to meet client needs are largely nonexistent. Despite their best efforts, attorneys working under such conditions can provide only the most minimal time and attention to each of their many cases. The result is a system that fails to meet the requirements of the law, undermines the proper functioning of the Family Court, and adds immeasurably to the short and long-term costs of removing children from their homes.
A survey conducted by the Public Advocate's office found "considerable parent dissatisfaction with the quality of their legal representation." Of those surveyed, 56% reported that their attorneys did not return phone calls, 57% reported that their attorneys did not inform them of their legal rights and options, and only 30% reported that their attorneys adequately represented their views in the courtroom. In their comments, many parents implied that they viewed their court-appointed attorneys as part of an uncaring bureaucracy that was biased against them.
The report concluded that legal representation for indigent parents accused of neglect or abuse is at best inadequate, and "neither protects the rights of parents nor serves the best interests of children. It denies parents due process, profoundly disrupts family life, and leads to inappropriately lengthy and costly foster care stays for children."
THE MODEST REFORMSSTANDARDS OF PRACTICE
Some modest progress has been made in addressing some of these deficiences. In August 2006, the American Bar Association's House of Delegates approved Standards of Practice for Parents' Attorneys, making the standards official ABA policy.
In May 2009, the National Project to Improve Representation for Parents Involved in the Child Welfare System held its first ever National Conference for Attorneys Representing Parents in the Child Welfare System. "The conference was an inspirational event at which 240 parents' attorneys took the opportunity to network together and learn from national experts about innovative child welfare law, theory and practice tips. The excitement and momentum of the conference continue to drive innovation and reform as conference attendees take what they have learned back to their home states," the ABA explains.
This year, a number of national organizations are working together to organize the first National Reunification Day on June 19, 2010. The goal of National Reunification Day, according to the ABA, "is to celebrate families and communities coming together and to raise awareness about the importance of family reunification to children in foster care."
The ABA continues on to explain: "Reunification with family is the preferred outcome for children removed from their homes and placed in foster care. Every year, hundreds of thousands of children are successfully reunified with their families. Reunification takes work, commitment, and investment of time and resources by parents, family members, social workers, attorneys, courts and the community. For most children in foster care, reunification with their family is their best option for a permanent and loving home."
THE EVOLVING CASELAW
Challenging the system on Constitutional grounds once children have been absorbed into it has become a matter of routine, as evinced by the many decades worth of consent decrees. Challenging the system on the front end - that is when the caseworker first appears at the door demanding entry - is relatively new. A body of caselaw continues to slowly evolve favoring the Constitution, as the Ninth Circuit Court of Appeals explains in a ruling issued in June of 2009:
The law was clearly established by February 2005 that government officials could not take a child into temporary custody without a warrant absent evidence establishing reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.
"By February 2005, we had applied this principle to find that social workers lacked reasonable cause to take children into custody without a warrant where there was no danger that abuse would occur in the time it would take to obtain a warrant or where there was a significant delay between the investigation and the removal," the Court explained in Springer v. Placer County.
In Walsh v. Erie County, a case decided in 2003, the Court ruled that: "Despite the Defendants' exaggerated view of their powers, the Fourth Amendment applies to them, as it does to all other officers and agents of the state whose requests to enter, however benign or well-intentioned, are met by a closed door." The Court continued on to say that: "Any agency that expects to send its employees routinely into private homes has a fundamental obligation to ensure that those employees understand the constitutional limits on their authority."
In Roska v. Peterson, a case decided in 2003, no immunity was found for caseworkers who entered a home lacking either exigency or a search warrant. Similarly, in Rogers v. County of San Joaquin a case decided in 2007, the Court held: "the rights of families to be free from governmental interference and arbitrary state action" are important, and that "the preservation of the essential privacy and liberty interests that families are guaranteed under both the Fourth and Fourteenth Amendments of our Constitution" are equally as important, hence removal of children without either a warrant or exigent circumstances violates those rights.
OTHER ISSUES REMAIN
An examination of hundreds of court files, prescription records, visits to group homes and interviews with child workers, lawyers, judges and doctors revealed that Californian children in state care "are being drugged with potent dangerous psychiatric medications, at times just to keep them obedient and docile for their overburdened caretakers". That report was issued in 1998. Little has changed since.
Indeed, the National Center for Youth Law recently amended a legal action in Nevada to address this very issue. In its highly detailed civil complaint, the Center explains that as the direct and proximate result of Defendants' policies, customs and omissions: "Plaintiffs have endured repeated failed placements, lack of access to continuous and/or effective mental health care, abuse, and neglect, and have been forced to take numerous psychotropic drugs. As a result of these experiences, Plaintiffs have suffered bodily harm, substantial physical and emotional pain and suffering, humiliation, extreme and severe mental anguish, acute anxiety, emotional and physical distress, and fear and depression, all to their damage and detriment.
Bill Grimm of the National Center for Youth Law explains that foster parents and private providers, such as group home operators and contract therapists, frequently know more about the children in their care than do agency staff. "They sense the disappointment when the worker who promised to visit the foster child does not show up for the appointment," he writes. These people are "reluctant advocates" for the children whose tragedies they witness for fear of retaliation, as Grimm explains:
It is not fear of losing the monthly income for the care of the child that keeps most from speaking out, but rather fear that a child in their home will be taken away as retribution for their daring to question the authority and judgment of the agency. Regrettably, this fear is often justified.
In 1994, Washington state legislators "heard from a half-dozen foster parents, some whispering through tears, who told tales of caseworkers who threatened, intimidated or harassed them after they made waves in the system," the Associated Press reported.
Retaliation against biological and foster parents continues to emerge as a familiar theme to advocates, and narratives confirming the reality of its existence are to be found concerning many child welfare institutions, whether public or private. As the civil complaint in the Children's Rights action in the state of Tennessee explains: "fear of retaliation by DCS often deters foster parents, pre-adoptive parents and others who provide services to children in DCS custody from advocating for the needs of individual children or complaining when needed services are not provided."
Ultimately, the question boils down to one of whether you can legislate away, privatize away, or for that matter even sue away the pernicious human psychological deficiency that is far-too-often enabled in caseworkers by virtue of the power that they are given to damage children by gleefully removing them from their homes in retaliation for their caretakers having advocated for their needs.
Privatization was peddled as a panacea sure to cure the ills of the foster care system during the mid-1990s, but some early critics of these efforts in Kansas, where the grand experiment began, suggested during testimony that it only added another cold and impersonal bureaucratic layer to contend with. TC Mosier of United Foster Families for Children addressed the SRS Oversight Transition Committee during hearings held in Topeka in 1997, explaining:
Foster Families have been ridiculed by the contracting agency and its workers. One foster parent was quite direct saying, "the workers seem to forget who knows the children better than anyone else, and when I attempt to share information, recommend, or add lip, I am told to let the professionals do their job." The contracting agency and its staff seem to forget that as foster parents, we have the children daily, weekly, and most often for a long length of stay; they deny the fact that foster care is a significant piece of the puzzle, and when the piece is ignored, decisions are made that can jeopardize the future of the child, thus the children suffer. Foster parents have been told to "stay within their boundaries," yet decisions that have been occurring have definitely had a negative effect on the foster children. One contracting agency have told the foster families, "it is not of your business," when they make recommendations. Foster families have been threatened, lied to, put down, and treated as if our concerns were nothing. Two of the contracting agencies have treated the foster parents as numbers and service delivery components, rather than human beings.
A recent report by the Kansas Joint Committee on Children's Issues describes the privatized system as one in which there are instances when contractors "do not place children with family, are allowed to submit sometimes subjective court reports parents and family of the child are not allowed to see, act in arbitrary ways, do not return children when parents have completed reintegration plans, and don't provide enough meaningful contact between children and parents in their visitation policies."
The Committee received testimony from parents and grandparents of children who had been placed in the foster care system. The committee published what it described as a partial list of their complaints. Among them:
Grandparents being denied placement of their grandchildren due to their age
The state making money when children are adopted by non-relatives
Case managers, caseworkers and other resource personnel not being licensed or trained properly
SRS and contractors making questionable decisions regarding the children's care and placement
Children's behavior growing worse in foster care placement
Children being abused during foster care placement
The committee reqested that audits be conducted, and that they should "examine whether a financial incentive exists for a contractor to keep children in the Foster Care system and, as a result, not return the children to their homes or recommend placement in the homes of relatives."
The committee requested that four bills introduced by various of its members be considered by the Kansas Legislature. These bills include: HB 2461 which would rescind SRS' authority to contract privately for foster care and related services; HB 2511 which would grant SRS the authority to reimburse grandparents sufficiently for providing care for their grandchildren; HB 2512 which would grant courts additional authority regarding placement of children; and HB 2494 which would add restrictions on the courts' authority to remove children from their homes and terminate parental rights.
In his cover letter accompanying the report, 43rd District Representative S. Mike Kiegerl notes: "The process of reforming SRS will take more time and effort; we have just begun. I have requested several audits to determine what value the Kansas tax payer is getting for the $150+ million we're spending on private contractors and to document the financial irregularities in the SRS budget of $1.6 billion."
The rampant falsification of records remains a significant problem. During fiscal year 2008-2009, over 47 percent of the cases investigated by the Office of the Inspector General of the Florida Department of Children and Families involved accusations of falsification. 62% of all allegations investigated by the OIG resulted in supported findings, and 41.58% of the completed investigations involved law enforcement and/or a State Attorney's Office referral due to possible criminal violations. Among the supported cases identified in the Inspector General's report:
A Child Protective Investigator falsified documentation within the Florida Safe Families Network
A Child Protective Investigator falsified documentation regarding a home visit
A Family Care Counselor of a subcontracted provider falsified a home visit with a child in foster care
A Child Protective Investigator falsified records in at least four cases
Our survey extends to Wisconsin, where a Racine County child protective service investigator is under criminal investigation for allegedly filing false reports on child abuse cases that he never actually investigated. Todd O'Brien, who had been employed with the agency since 1998, reportedly filed detailed reports that labeled allegations of abuse as unsubstantiated when in fact he never went to any of the allegedly abused children's homes.
To New York City, where 27-year-old Stephanie Sabouni is arrested for falsifying documents in an attempt to cover up her failure to visit children under her supervision. The former educational neglect caseworker altered agency computer records, authorities said, to make it appear that she had visited a child's home when, in fact, she had not.
The New York State Medicaid Fraud Control Unit recently conducted a statewide investigation of foster care agencies that produced $1,984,800 in restitution. The Unit reached settlements with 42 child foster care agencies for "engaging in practices that resulted in double-billing."
The Fraud Control Unit's investigation commenced in 2007, and by 2009 it had obtained recoveries totaling $2,681,800 from 63 child foster care agencies, according to its annual report.
But that may well be the tip of the proverbial iceberg. In August 2009, the U.S. Attorney's Office for the Southern District of New York announced that Stay Thompson, the former fiscal director of Concord Family Services, a New York City foster care agency, was found guilty of conspiring to commit mail fraud and money laundering.
"The charges relate to a scheme to obtain more than $100,000 worth of adoption subsidy payments from New York City to care for needy children who did not in fact exist," a press release explains. At the time of the announcement, five other individuals had been charged and pleaded guilty in connection with the scheme.
Among the others who'd pled guilty were Lethem Duncan, the Deputy Director of the Payment Services Department of the Administration For Children's Services, and Nigel Osarenkhoe, former Supervisor of Adoptions within the agency's Payment Services Department. To be sure, Osarenkhoe also served on the Administration For Children's Services Quality Assurance Unit.
In addition to managing adoptions and foster care, the Administration for Children's Services jointly operates the city's child care services program with the Human Resources Administration. Auditors recently examined whether their oversight activities were effective in monitoring the health and safety of children receiving care, and whether the program's funds were being spent for their intended purposes.
They found that "94 percent of the random sample of 50 providers had one or more issues of noncompliance with health and safety requirements," according to the Comptroller's office. Auditors could not confirm that services were actually being provided by 14 of the 50 providers, and two of the providers were registered on the New York State Sex Offender Registry.
We travel now to nearby Philadelphia, where a co-founder of a social service agency, Multiethnic Behavioral Health, Inc., finds himself sentenced to 90 months in prison. Earle McNeill pleaded guilty to fraud charges stemming from the investigation after a 14-year-old girl with cerebral palsy died from malnutrition and severe bed sores while in his agency's care.
Prosecutors said McNeill had "joined in the rampant fraud at the agency," adding that Multiethnic had "billed the city for services not rendered, and kept the contract by fabricating false records to make it appear that all services had been delivered."
Danieal Kelly's death led to the firing of top Department of Human Services officials, and multiple investigations of the city agency. DHS had paid Multiethnic about $3.5 million in federal funds from 2000 through 2007.
A study issued in May of 2010 found that nearly 60 percent of young men who had been in foster care had been convicted of a crime, compared with 10 percent of young men who had never been in care. For women, three-quarters were on public assistance by age 24.
Forty-two percent of the young men compared with 20 percent of the young women reported that they had been arrested, 23 percent of the young men compared with 8 percent of the young women reported that they had been convicted of a crime, and 45 percent compared with 18 percent of the young women reported that they had been incarcerated.
The researchers explain that: "The picture that emerges from data we collected when they were 23 and 24 years old is disquieting, particularly if we measure their success in terms of self-sufficiency. Across a wide range of outcome measures, including postsecondary educational attainment, employment, housing stability, public assistance receipt, and criminal justice system involvement, these former foster youth are faring poorly as a group both in an absolute sense and relative to young adults in the general population."
One may well hope that their ultimate outcomes are brighter than are those of other youths who had been "emancipated" from state care. A 1991 federal study of former foster care wards found that one-fourth had been homeless, 40 percent were on public assistance and half were unemployed. Connecticut officials estimate 75 percent of youths in the state's criminal justice system were once in foster care.
A National Association of Social Workers survey found that children placed in out-of-home care, regardless of the reason, are at higher risk of developing alcohol and drug problems. The survey also found that 80 percent of prisoners in Illinois spent time in foster care as children.
THE BUSINESS OF REFORM
In a landmark Illinois action, United State Magistrate Joan B. Gottschall succinctly summarized the case that challenged:
defendant's policies and practices of (1) taking and retaining custody of children from impoverished parents and legal guardians because of their inability to obtain cash, food, shelter, or other subsistence, while failing to assist the parents and children to meet these needs; (2) failing to assist them to secure cash, food, shelter or other subsistence through the coordination of services to needy families and otherwise; (3) failing to make reasonable efforts to prevent removal of plaintiffs' children and reunite families; and (4) abridging the liberty and property interests of parents in retaining custody of their children and maintaining the means to support themselves and their families.
Gottschall thouroughly reviewed the case, writing a point by point analysis in which she ultimately concluded that the policies and practices of the state's child welfare agency were nothing short of "conscience-shocking."
To the casual observer, the child welfare system would appear to be in a perpetual state of reform. Incremental adjustments, such as alterations in caseworker training policies, efforts at involving law enforcement in varying degrees during the investigative stages, movement toward a "less adversarial approach" to interventions, privatization, and varied reorganizations of existing bureaucratic structures have been identified as among current reform efforts.
There have also been countless efforts at reform through litigation. As of 1990, George Miller and the members of the Select Committee on Children, Youth and Families had counted over 45 lawsuits which had been won by child advocates based on violations of the Adoption Assistance and Child Welfare Act. Since that time, the National Youth Law Center's Foster Care Litigation Docket has continued to grow in size.
While some modest gains have been made from time to time, for the most part these gains have been temporary. The brilliant rulings are written, the consent decrees are signed, and the special masters are appointed, even as little of substance changes for children and their families. As Miller candidly observed some years ago: "This system has been sued and sued and orders have been issued and people have just continued on their merry way."
These efforts at reform have failed because the core tasks of the child protection system - the investigation of families and the removal of their children from their homes - remain unchallenged and unchanged to this day.
While it is true that some children require a safe haven from abuse or neglect, the great tragedy is that those children in true need of placement often are not identified - even in the event that they come to the attention of the system - while those for whom placement is inappropriate are removed from their homes by the hundreds of thousands. As professor of social work Leroy Pelton explains:
It is my belief that not only are there many children in foster care who should not have been placed there, but that there are other children who are being wrongfully left in their natural homes. In short, children are being removed from their homes in the wrong cases and being left at home in the wrong cases. Furthermore, it is my belief that if only those children were placed in foster care who actually need it, we would have very few children in foster care.
The rescue crusade continues, as not only has federal oversight has been all but nonexistent, but Congress has often waived penalties imposed on states for lack of compliance with the reasonable efforts requirements of Public Law 96-272. After years of well-documented indifference on the part of child protection and foster care agencies toward the modest requirements of the law, Congress has decimated the meager protections it offered children through its enaction of the Adoption and Safe Families Act.
At the heart of it all are the perverse federal financial incentines that reward states for removing children from their homes and holding them in state care. Adding additional fuel to the fire are federal incentives favoring adoption over reunification.
Under the rubric of a war against child abuse, the destruction of families will likely continue until such time as the casualties of the war mount to such an extent that even Congress cannot overlook them. The misdirection of funding away from assisting the poor toward instead removing an ever-increasing number of their children is likely to continue unabated until such time as society reaches a more compassionate consensus and disassembles the child removal apparatus, establishing in its place a system that is genuinely supportive of families and children.
Today, "business as usual" remains the rule in these United States. And it is vulnerable children, their state-fractured families, and the taxpayers who continue to pay the price.
"Horrific Abuse Alleged in Mass. Foster Care," Courthouse News Service, April 19, 2010.
Connor B. v. Patrick, Civil Complaint, April 15, 2010.
"Court hears arguments in foster care lawsuit," Channel 10 News, Providence, Rhode Island, January 5, 2010.
Associated Press, "Judge orders records in toddler's death opened," as reported on LEX18.com, Lexington, KY, May 4, 2010.
"County To Pay $300000 In Lawsuit Over Child's Death," Channel 7 News, Denver, Colorado, March 2, 2010.
"Motion Filed In DHS Lawsuit," FOX23 News, Oklahoma, March 25, 2010.
"Report: State foster care system lacking oversight," Online Athens, January 23, 2010.
"Report: Georgia foster care oversight lax," Associated Press as reported by The Augusta Chronicle, April 19, 2010.
"Lawsuit Filed Over County Foster Care," NewsRadio 840 KXNT, April 14, 2010.
Brian Haynes, "Lawsuit claims inadequate care of foster children by welfare agencies," Las Vegas Review-Journal, April 14, 2010.
Garrett Therolf, "L.A. County to develop foster care investigative unit," Los Angeles Times, March 24, 2010.
Ann Mullen, "Investigators: Starved to Death in State Care," Channel 7 Action News, WXYZ, May 1, 2010.
The Stacked Deck
Bob White, "Model Court: A big change for justice," News-Enterprise, May 12, 2010.
The "Other" Kentucky Lottery: Child Protection and Permanency for Abused and Neglected Children in Kentucky in 2005, The National Institute on Children, Youth & Families, Inc. & Kentucky Youth Advocates, January 2006.
Investigative Report, Allegations of misconduct by certain employees of the Department for Community Based Services - Lincoln Trail Region related to the removal of children and/or the termination of parental rights based on alleged abuse, neglect, or dependency, Office of the Inspector General, Robert J. Benvenuti III, January 10, 2007.
Ann Mullen, "Investigators: Starved to Death in State Care," Channel 7 Action News, WXYZ, May 1, 2010.
The Parent Representation Project at the University of Michigan Law School web site offers a commentary and links to the briefs and court rulings in Mitchell's case.
The National Project to Improve Representation for Parents Involved in the Child Welfare System, American Bar Association.
National Reunification Day, American Bar Association.
Los Angeles Times, "Calif. group homes drugging children to keep them docile", as reported in Baltimore Sun, May 17, 1998.
National Center for Youth Law, NCYL Seeks Relief for Children in Las Vegas Child Welfare System; Sues for Damages and Reform, press release, April 14, 2010.
Henry A. v. Michael Willden et al, Case 2:10-cv-00528, civil complaint, US District Court, District of Nevada, as filed April 14, 2010.
Bill Grimm, Angela R. is latest chapter in systemic child welfare litigation, Youth Law News, March/April, 1992
Associated Press, Officials oppose bill to protect foster parents, Seattle Times February 6, 2004.
Brian A. v. Sundquist, No. 3-00-0445, U.S. District Court, Middle District of Tennessee, Nashville Division. Civil Complaint
Testimony of TC Mosier, United Foster Families for Children, SRS Oversight Transition Committee, Topeka, Kansas. November 4, 1997.
Joint Committee on Children's Issues, Report of the Joint Committee on Children's Issues to the 2010 Kansas Legislature, Kansas, December 2009.
Cover letter from Rep. Mike Kiegerl concerning the Final Report of Joint Committee on Children's Issues to the 2010 Kansas Legislature, March 12, 2010.
Office of Inspector General, Sheryl G. Steckler, Annual report, State of Florida, Department of Children and Families, September 29, 2009.
Marci Laehr Tenuta, "Instead of investigating child abuse, worker filed false reports, " The Journal Times, April 28, 2010.
Veronika Belenkaya and Stephanie Gaskell, "Former child welfare caseworker played hooky - and forged documents to cover it up, authorities say, Daily News, May 27th 2009.
New York State Medicaid Fraud Control Unit, 2009 Annual Report, April 2010.
United States Attorney, Southern District of New York, Former fiscal director of New York City foster care agency found guilty for her role in adoption subsidy scheme, press release, August 13, 2009.
Office of the State Comptroller, Division of State Government Accountability, New York City Administration for Children's Services, New York City Human Resources Administration, Health, Safety and Fiscal Issues Relating to Legally-Exempt Child Care in New York City, Report 2007-N-11, May 29, 2008.
Nathan Gorenstein, Jail for a Multiethnic founder in Danieal Kelly case," Philadelphia Inquirer, April 23, 2010.
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