What I have come to know about these issues and what I am willing to say and attempt to expose is not often very well received. Any advocate soon learns that there is also going to be politics involved with legal reform and there will sometimes be a need to carefully "sugar coat" the presentation of these issues otherwise these advocates will fail to have the attention of those policy makers who need to be made aware of these problems.
There are only a portion of these problems being addressed in the child welfare system that need corrected and improvement. There are many very qualified experts in this field that are doing excellent work, research, and competently addressing these issues.
However, one issue that is very rarely competently addressed is that there are far too many "open gaps" in these child welfare laws so that a specific form of corruption has also quietly grown unchecked and these corrupted individuals and organizations have been able to keep up with and grow with the changes and improvements as these have been made, always managing to keep one step ahead of the game.
Far too many children have already suffered from the negligence and incompetence already being found in the legitimate side of the child welfare system that has been given attention and these changes and improvements have been long overdue. But certain children will never be provided these protections as long as the specific form of corruption within the child welfare system is not going to be recognized, or addressed, because these types of abuses are intentional, well planned out, well executed and expertly "covered up" for personal gain and profit while the federal funds for child welfare programs "pay off" very well for these types of individuals who can be found working within the child welfare system.
I know of no attorney who is not fully aware of the many issues I raise,
but I know very few attorneys who are comfortable talking about these issues
because the public is intentionally kept in a state of confusion about
how the legal system really works and it would be chaos if and when the
public ever does start to demand the many legal reforms which are long
I have personally seen several outrageous cases of public corruption that were intentionally not investigated and I know of other misconduct issues that I cannot talk about because of the "out of court" settlements that were made while I worked for an attorney and I continue to be bound by the attorney/client privilege that exists between my former employer and his clients.
I have spoken with a few attorneys who share many of these observations
and have been told that
legal reform is too time consuming and legal reform advocates will find that there is far too much organized resistance to these reforms. Many lawyers have told me: "Of coarse the courts are corrupt but the public doesn't know it, or seem to care, but there is an easier way to deal with these things!"
For many people who have little choice but to accept or find other ways to deal with injustice or corruption they will have to also eventually find they are locked between a public that is indifferent to these problems and politicians who are more often than not motivated by this same public opinion.
I have also come to believe that many of these professional organizations and their relationships with elected officials is another very serious potential embarrassment for many politicians who have supported these laws. Many of these corrupted "child welfare specialists" are returning a portion of "these profits" to support politicians and program administrators who are not questioning these things and those who are willing to support the status quo. It is my opinion that many politicians who truly acted in good faith from the beginning are slowly becoming weary that this highly questionable alliance between the legislature and the "child welfare specialist" will also be exposed and potentially damage many reputations. It may be this also is another "stumbling block" for the reform advocate and contributes to the problem of failing to recognize that these particular problems do exist.
The problems of this type of corruption, agency misconduct, and institutional
abuses growing within the child welfare system has been brought to the
attention of many federal congressional hearing committees time and time
again in congressional testimony dating back as far as 1979, by my research.
My research indicates these issues were raised in 1979: BEGIN QUOTE
AMENDMENTS TO SOCIAL SERVICES, FOSTER CARE, AND CHILD WELFARE PROGRAMS
HEARINGS BEFORE THE SUBCOMMITTEE ON PUBLIC ASSISTANCE, AND UNEMPLOYMENT COMPENSATION OF THE COMMITTEE ON WAYS AND MEANS
HOUSE OF REPRESENTATIVES NINETY-SIXTH CONGRESS FIRST SESSION ON LEGISLATIVE PROPOSALS AMENDING TITLE XX SOCIAL SERVICES PROGRAMS. AFDC FOSTER CARE AND CHILD WELFARE SERVICE PROGRAMS
March 22 and 27, 1979
STATEMENT OF JANE KNITZER, PROJECT CO-DIRECTOR, CHILDREN'S DEFENSE FUND
Let me briefly highlight what we found in our study because I think it really ties in very much with some of the issues that have already been raised in testimony today and last week. We have three major findings. The first is there is an antifamily bias that pervades the policies and practices of the child welfare system. The system works against families, not for them.
The second is that the children who are in these systems, in child welfare systems are in double jeopardy because they are also subject to neglect by public officials who have responsibility for them.
And the third major finding, which is why I am here today, is the Federal
role exacerbates both the
antifamily bias and the public neglect of these children. Let me just for a moment speak in some detail about these findings.
1) Children are inappropriately removed from their families.
2) The public neglect of children we found takes many forms.
3) We also found that for many of these children there are either no reviews or the reviews are pro forma. In our study we found that reviews are simply very often paper reviews. Otherwise there were no reviews of the cases
4) You have already heard today how the Federal fiscal dollar is implicated in sustaining these problems and I am not going to go into that in detail. Suffice to say it provides incentives in all the wrong directions.
5) We are very concerned about the present system by which children are in fact funneled through the court.
It is not at all clear to us that the required judicial determination now serves as a protection for children. In fact, it serves to guarantee Federal funding and the children in many cases are simply being run through the court and rubber-stamped to become eligible for AFDC foster care program.
In other words, we are concerned again about the pro forma use of the court as a trigger for the fiscal dollar.
6) Let me turn now to addressing what we believe is one of the core elements of this legislation and that is the protections that the bill affords to children and families. One of the tragedies of the current system is parents and children have so few protections against its capricious functioning. We believe that there are a number of protections that are absolutely essential that must be built into any kind of legislation and we believe that these protections must be afforded as a right to each child in foster care and they must be clearly made a condition of funding under both AFDC foster care program and the IV-B program.
7) And we believe that it is very important that in this legislation there be some kind of clear mechanism for fair hearing.
8) We believe that any bill should spell out due process protection such as the right to notice, the right to participate and the right to have representation when critical decisions are made about the children.
9) Finally, I would like to just briefly mention our hope that the bill will include strong accountability provisions and to reinforce what Senator Pisani said about the need to build in some of these mechanisms into the legislation. We believe that accountability mechanisms ought to be established so there can be increased public participation both in the planning process for the child welfare system and in the information available to the public so they can know what is going on with these children. We also believe that there must be provisions for adequate periodic on-site reviews, on-site case reviews as well as reports.
10) We believe this should be an on-site case review kind of mechanism to make sure that in fact individual children are being protected in the ways envisioned by the bill.
The current federal laws provide for sanctions, fines and loss of these federal funds when the states fail to comply with the mandates which these federal dollars are provided for to the states. Yet the federal government has been very lenient with the states who have failed to pass the audits performed by the Department of Health and Human Services. In fact the federal government has offered more money to correct problems that can be much more efficiently corrected by stopping many of these practices altogether which would take no additional money at all.
A statement released by the Honorable George Miller, Tuesday, May 6,
2003, Senior Democrat, Committee on Education and the Workforce in a News
Conference on the Report of the Child Welfare Summit Center for the Study
of Social Policy and the Center for Community Partnerships in Child Welfare
has again raised the issue of the need for reform based on yet another
study and buried in the back ground papers released with this report can
Accountable with what consequences?
"The federal government imposes requirements on, and demands accountability from, state child welfare systems as a condition of providing funding. The legal consequence of failure to comply with those requirements is a reduction in financial support. Virtually all of the federal regulations governing monitoring procedures stipulate financial penalties and/or repayments with interest for disallowances based on inappropriate expenditures. Because imposition of penalties can involve very large sums, especially in the case of Title IV-E eligibility-related penalties and disallowances, states generally mount significant legal defenses, sometimes lasting for years, to avoid repayment or to reach settlements that reduce what they owe. To date, no state has been penalized for failure to meet its CFSR Program Improvement Plan targets, but there are likely to be failures that will invoke penalties.
The historical record on the effectiveness of federal penalties suggests
that actual imposition of penalties has not played a very significant role
in improving state systems. Some believe that the threat of penalties is
in itself an effective accountability measure and has a salutary effect
in commanding the attention of governors and state legislatures whose decisions
about budget allocations are crucial to an agency's capacity to undertake
necessary improvements. On the other hand, the lengthy delays in imposing
of penalties make it unlikely that the same political and agency leaders
who presided over a flawed state child welfare system will be in office
when the state actually has to pay for its failures." END QUOTE
Everyone, every agency, every court, every prosecutor, every social worker, every legislator and every expert child and family therapist all have a heavy burden of this guilt to bear. We are all responsible for the failures of the child welfare system and perhaps those most responsible is the public if politics is going to be driven by public opinion instead of the wisdom and experiences of the many dedicated people who have already come forth and made every possible honest effort to bring to the attention of the legislature what is wrong and what should not be allowed if this nation's policies truly intends to protect children.
What is so rarely spoken about is perhaps a very "sacred cow!" The legal and justice system, or our court system, is not being recognized for its part in these problems while the freedom the judicial system has been given to interpret due process as it is applied to the citizen, the public servant and children that come before the courts.
The various tactics, trial strategies, and legal maneuvers so well executed
in our courts may be fine in criminal cases where the adversary system
is given far more credibility than it deserves. But these same procedures
and trial tactics have no place in a child protection, child custody, or
any other proceeding before a court involving the rights, welfare, and
well being of children.
The judiciary has assured itself of almost total immunity for anything a judge does while wearing a black robe and the truth has come to be that any mistake a judge makes is going to be very expensive for those who petition higher courts in order to have these errors corrected. In fact, the most ingenious system has been created and established by these judges that can most easily be stated so that a judge may truly say to the poor, the underprivileged and the child: "If I made an error, or a mistake, it is not my fault and you have to live with it, because it is your fault I made these mistakes. The appeal process favors judicial convenience far too often.
If I could go through life blaming everyone else for the mistakes I made and also require them to have to pay for having my mistakes corrected I could not possibly better describe the current judicial system and appeal process. Not everyone who experiences the judicial processes are treated unfairly, but please remember children are not often capable of speaking out and do not understand much of what is happening to them anyway. Anyone who has to appear in court and has certain issues, evidence, or conditions some judges will find inconvenient is a "sitting duck" for some of the most outrageous legal abuses judges are far too often not held accountable for allowing.
I think world history will eventually record that the US Citizens has got to be one of the most gullible societies this entire world has seen when it comes to actually believing there will be due process before a court when the truth is that anything goes, it is so expertly justified. There are no real rules except you had better be more educated about the laws, the legal system, and its rules than the judge hearing your case, the attorney representing you and the appeal judge who will review your appeal. For our legal system holds that mistakes and errors a judge makes is the responsibility of the person who has allowed that mistake to made without objection. If you are adversely affected by a judges errors you must not only "timely object" to these errors when they happen but also be able to know and clearly state the legal grounds that a mistake has been made, otherwise you risk losing a right to appeal on that issue. You also are at risk that the Judge's court reporter has accurately recorded your objections so that these will be preserved for appeal.
There has been more than enough times child welfare agencies and caseworkers have been accused and found guilty of altering, removing, or destroying records. The courts are not any less guilty, but the courts enjoy much less scrutiny on this issue.
The judges who will review these appeals have given themselves the discretion to hear, or not to hear, any case they please under the most complex and outrageous insane rules imaginable. These rules often contradict each other in a tangled maze of circumstances and conditions being imposed upon the unwary and uneducated.
Several examples are being provided here taken from actual appeal decisions:
A client's true legal relationship with their attorney could accurately be described as having to catch a thief "red handed" during the act of breaking into your house and then having the responsibility of informing this thief that you are aware of his act of breaking into your house. If you are not able to meet these specific conditions of knowing when to protect yourself from the negligent conduct of an attorney you are very most likely going to fail to stop this thief from breaking into your house and taking whatever they please. When it comes to attorney and judicial misconduct you are not often permitted to complain about this "after the fact."
What has been even more disheartening to me about the current legal
system is the higher courts are now saying "SO What!" when confronted with
issues that a prosecutor, or an expert witness lied, committed perjury,
manufactured false allegations, and fabricated the evidence used against
the accused in court.
Rowe v Ft. Lauderdale (January 23, 2002) [Read the entire case by clicking here]
Having secured his release, Rowe filed in federal district court a lawsuit raising federal and state law claims against some of the people involved in accusing, investigating, and prosecuting him. They are: 1) Cynthia Doss, Rowe's ex-wife, who initially reported the alleged abuse to authorities; 2) Sharon Anderson, a state child services worker who investigated Doss's report of abuse; 3) the Florida Department of Health and Rehabilitative Services (HRS), (1) which was Anderson's employer at the time she investigated the daughter's story; 4) Joel Lazarus, the prosecutor who obtained Rowe's indictment and conviction; and 5) Michael Satz, in his official capacity as the State Attorney for Broward County, because he was Lazarus's employer at the time of the prosecution.
At Rowe's trial, Lazarus introduced a fabricated photograph indicating the jump rope had been found in the girl's bedroom when he knew it had not, and knowingly introduced a fake jump rope that was longer than the real rope and had been knotted to corroborate the girl's story. In addition, Lazarus put on testimony by Doss, her daughter, Anderson, and Ledegang, even though he either knew (as to Ledegang) or had reason to know (as to Anderson, Doss, and her daughter) they were lying.
We now turn to the issue of whether, given those facts, the district court was right to grant Lazarus summary judgment on Rowe's claims against him. We begin by discussing whether Lazarus was entitled to immunity from Rowe's claims. A prosecutor is entitled to absolute immunity for all actions he takes while performing his function as an advocate for the government. Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct.. 2606, 2615-16 (1993). The prosecutorial function includes the initiation and pursuit of criminal prosecution, Imbler v. Pachtman, 424 U.S. 409, 424, 96 S. Ct.. 984, 992 (1976), and all appearances before the court, including examining witnesses and presenting evidence. See Burns v. Reed, 500 U.S. 478, 492 111 S. Ct.. 1934, 1942 (1991). Under these principles, it is clear that, even if Lazarus knowingly proffered perjured testimony and fabricated exhibits at trial, he is entitled to absolute immunity from liability for doing so.
An investigator's planting or fabricating evidence in an effort to obtain
a conviction does violate clearly established law, Jones, 174 F.3d at 1289-90;
Riley v. City of Montgomery, 104 F.3d 1247, 1253 (11th Cir. 1997), and
therefore is not protected by qualified immunity. Thus, if Lazarus had
engaged in any planting or fabricating of evidence while he was in an investigatory
role, he would not be immune from liability for damages to Rowe.
In Bielaska v Orley, unpublished opinion per curiam of the Court of Appeals, issued July 19, 1996 (Docket Nos. 173666, 174949, 175287, 175388), this Court held that the trial court's finding of sexual abuse by Edward was against the great weight of the evidence, and we reversed the trial court's decision granting custody of the children to their mother. On remand, the trial court awarded Edward custody of both children and prohibited the children's mother from seeing them. ..............[NOTE: a discussion of immunities follows]
In Maiden v Rozwood, 461 Mich 109, 133-134; 597 NW2d 817 (1999), which was decided after the parties to the instant case filed their briefs on appeal, the Court discussed the issue of witness immunity. In Maiden's companion case, Reno v Chung, 461 Mich 116, the plaintiff found his wife and daughter brutally stabbed. Before the plaintiff's daughter died, she spoke to the plaintiff and told him who had attacked her. The plaintiff relayed this information to police. Id. The medical examiner, who performed a subsequent autopsy, opined that the plaintiff's daughter could not have spoken after being stabbed. Id. On the basis of that opinion, the plaintiff was arrested for murdering his wife and daughter and was bound over for trial. Id. At the preliminary examination, the medical examiner testified that the plaintiff's daughter could not possibly have identified another person as the attacker. Id. Later, the medical examiner's opinions were found to be grossly incompetent and the charges against the plaintiff were dismissed. Id. at 117, 128-129. The plaintiff sued the medical examiner and others, alleging gross negligence. Id. at 117.
Our Supreme Court affirmed dismissal of the civil action, finding that summary disposition was warranted under MCR 2.116(C)(7) and (8). Id. at 118. In that opinion, the Court explained the scope of the witness immunity doctrine in Michigan. The Court stated: [W]itnesses who testify during the course of judicial proceedings enjoy quasi-judicial immunity. This immunity is available to those serving in a quasi-judicial adjudicative capacity as well as "those persons other than judges without whom the judicial process could not function." Witnesses who are an integral part of the judicial process "are wholly immune from liability for the consequences of their testimony or related evaluations." Statements made during the course of judicial proceedings are absolutely privileged, provided they are relevant, material, or pertinent to the issue being tried. Falsity or malice on the part of the witness does not abrogate the privilege.
Absent perjury of a character requiring action by the prosecuting attorney,
the testimony of a witness is to be weighed by the fact finder in the matter
at bar, not by a subsequent jury summoned to determine whether the first
lawsuit was tainted . . . ." [Id. at 133- 134 (citations omitted), (emphasis
added).] END QUOTE!
Now! For the final blow as for what is supposed to be known as due process. Any litigant who goes to court could be described as a gladiator entering an arena to defend themselves. Under our current court system the defendant is often subject to having their sword and shield taken away from them, their armor removed, and then being blindfolded while their adversary [the court, prosecutor, and witnesses testifying against the accused] is given machine guns, hand grenades, and anti personnel mines to set wherever they choose to surprise their blindfolded adversary as he stumbles around this arena in a desperate hope that there is a possibility to prevail under these circumstances.
Not many people ever go to court and experience these things first hand while many who do experience these things are also often disposed to accept these conditions due to their lack of understanding the law.
It cannot be stressed enough that when the courts are involved with any child's welfare these are not the rules to follow but as anyone can clearly see this is what the courts have found more than agreeable and proper as rules to apply even when it comes to the rights and welfare of our nation's children.
There is more than enough blame to go around when the fingers start pointing to the cause of many of the inequities found in the child welfare system that has been growing along with these problems and our courts have also initiated child abuse task forces and reviews yet have remained suspiciously silent about these very issues. Our nation's judges are not going to "give these privileges up willingly" not even for the benefit and welfare of our children.
For the protective parent and the abused child there is very little left that is being made available to them by this legal system for all the good pieces of the pie have been cut and passed around and all that is left is the crumbs. Our Judiciary also has its guilty hands in this "flow of federal funds" and to keep these funds flowing the judiciary has to allow others access to these funds through the court processes. Clearly, the courts have been entrusted with not allowing children's rights to trampled upon but the courts must take their share of the blame and this is not often discussed.
As each degree of blame is passed around wherever it can be found there are also far too many other reasons that certain problems have not been addressed because exposing each of these problems expose other conditions that have been "quietly ignored" but are a significant reason why there are so many opportunities for these failures in the first place.
I wish I could stand here today and say that no one could be so naive as to not see what is really going on with the child welfare system but the ugly truth is that this is how the child welfare system has evolved and it appears that either people are that naive, or they have become far too gullible by placing faith in a system which has been specifically designed to function well for those who administer it and not the children it is supposed to protect.
It would please me to be able to say how resourceful I might be and that I have been able to come to these conclusions due to my own expertise but the truth is I have not said one thing today about child welfare reform that has not been said over and over again and again for 20 years now.
Experts much more qualified than I have seen these problems and reported them to federal legislators as far back as 1979. This information is available, the facts are known, and it is time the Federal legislators stop tolerating the state's systematic abuse of these laws in order to maintain the flow of federal funds and either zealously enforce compliance with the federal mandates of child welfare reform or cut these funds off. Stop rewarding the states with more money in hopes that more money will encourage the states to begin to comply with these laws. Cut the money off and I am certain the states will find ways to comply much faster than a promise to comply sometime in the future.
It is worth repeating if I could go through life blaming everyone else for the mistakes I made and also force them to have to pay for having my mistakes corrected or accept having to live with my mistakes, I could not possibly better describe the our courts, our current child welfare system, and the attitudes that must be overcome with regards to finding ways to improve our child welfare system. No wonder our child welfare system has problems!
If we cannot admit and take responsibility for our mistakes we are only allowing ourselves to continue to make them. We all have our share of blame and we all must take responsibility and we all must make sacrifices. Do our children deserve anything less?
We must seriously consider to make these changes:
1) Set legal standards and legal definitions for court ordered psychological evaluations and assessments so that the courts must abide by consistent standards.
2) Enact legislation that makes it mandatory that child welfare agencies and police investigators videotape children when performing interviews of children so as to accurately preserve the evidence and eliminate the need to subject a child to multiple interviews.
3) Enact legislation that provides that either party in any court proceeding who is ordered by the court to undergo psychological evaluations and assessments and who requests that these psychological evaluations and assessments be preserved by videotape recording have the right to demand that all parties, including the children involved, be allowed to preserve the evidence by means of videotape recording and that this law be mandatory and not subject to judicial or agency discretion.
4) Enact legislation that when any child welfare, or child protection agency, files child abuse or child neglect proceedings in court that these agencies may not act as accuser and then also be supervisor for supervised visitations which may be ordered by the court.
5) Enact legislation that makes it mandatory that court ordered supervised visitation be videotaped if either party requests it as a right to preserve the evidence.
6) Enact legislation that removes all immunities for social workers, prosecutors, judges, and court appointed expert witnesses for specific violations, including failure to follow administrative rules, violations of due process, falsifying records and documents, and using objectionable procedural and tactical delays.
7) Enact legislation that provides mandatory disclosure by the prosecutor at the time of filing a child abuse or child neglect proceeding in court. Specifically that the prosecutor must file with the court petition all available evidence and documentation supporting the prosecutors allegations contained in the court petition and serve it on the accused with a proof of service before the accused is required to respond, or appear in court. Once a prosecutor takes a case to court all of this documentation and evidence is already a matter for the discovery process so why not make it automatic and attorneys will not be allowed to display their delaying tactics in court over discovery issues.
8) Enact legislation that makes it a criminal act for any prosecutor, child welfare agency, or court appointed expert to knowingly withhold evidence permitted by discovery from the accused, or either party in a court proceeding.
9) Enact legislation that provides for creation of an independent oversight review agency for courts, judges, attorneys, child welfare agencies, and mental health experts that are totally independent from the Judicial Tenure Commission, Attorney Grievance Commission, and State Court Administrative Offices. Specifically that these oversight agencies be created to operate totally independent from any political, or administrative association with existing agencies that are already involved with the child welfare system and have all the power and authority to investigate, prosecute, and remove corrupt and negligent individuals from all aspects of the child welfare system and administrative structure. We must make an honest effort to eliminate the corruption that has been allowed to thrive in the child welfare system
10) Enact legislation that creates a Children's Bill of Rights.
11) Enact legislation that creates standards of qualifications for licensing of social workers, mental health professionals, and other agency professionals involved in the child welfare system.
12) Enact legislation that sets mandatory requirements to be performed by attorneys who are appointed by the court to represent children.
13) Enact legislation that provides a standard form for making a written Children's Protective Services Complaint which provides an option for the individual making the complaint to waive the privilege of confidentiality if they are willing to do so.
14) Remove immunities for judges who fail to timely decide upon properly filed motions, fail to intervene in abusive trial delays and discovery tactics, refuse to admit legal evidence and fail to accurately supervise the preserving of the record before their court. Judicial accountably as well as the part our courts have played in child welfare needs to be carefully and fully reviewed.
Terry L. Fesler
Children's Rights Advocacy