Each day, within the United States, including the General Population and Foster Care, just over 4 children die due to child abuse or neglect. A statistic that is used to justify our Child Protection System. Sadly that statistic is not as clear as it needs to be.
The general population of children within the United States comes to 73.6 million. Of that about 401,000 are in foster care. In 2013, there was just over 1,200 child fatalities in the general population and just under 300 in foster care. By subtracting the number in foster care from the general population… dividing that into the Gen Pop Fatalities and multiplying by 100,000 to obtain the fatality rate of 1.66 / 100k children in general population. Doing the same for foster care reveals a fatality rate of 66.59 / 100k. Dividing the Foster Care Rate by Gen Pop rate reveals ratio of 40.05:1 likelihood of a child dying in foster care over leaving them in the home.
Two Where Protected Failed
Laila Marie Daniel – STOCKBRIDGE, GA
Over the last few days the story of Laila Marie Daniel has been surfacing. On November 17th, authorities were called to the home of caregivers Joseph and Jennifer Rosenbaum for an injury of a 2yr old child which subsequently took the child’s life. Just a few weeks earlier Laila has suffered a broken leg under questionable circumstances.
The warrant affidavit indicated the Rosenbaums deprived Laila of “necessary sustenance to the extent that the child’s health or well-being was jeopardized, by failing to feed the child in quantities necessary to sustain an adequate body weight.” Bruising was also found on the girl’s neck, face, abdomen and legs. She also had broken bones in her arms and legs. Her sister had similar injuries.
Laila and her 4yr old sister had been removed from their mother some months back over their mother’s alleged drug use. They had been at the Rosenbaums for about 5 months. It is unclear how long they had in the temporary custody of the state but there were indications she had been in multiple placements.
It was also revealed that Jennifer and Laila’s mom had been foster children together. That was the reason this placement was chosen. Tessa (the mother) had recently become concerned over the placement having called DFCS wasn’t listening; claiming she was calling too often.
Alexandria Hill – Rockdale, TX
On July 29, 2013 the parents of Alexandria Hill were alerted that they had to rush to the hospital because their child was in a comma. When they arrived they found Alex on life support. Alex passed away 3 days later when they pulled the plug.
This case too was on where the parents were alleged to have smoked Marijuana after Alex went to bed at night. They had been working services and were due to get her back in November.
The caregiver Sherill Small claimed that Alex had been running backwards and fell. Doctors said she had brain hemorrhaging and retinal hemorrhaging in both eyes. Small later told police that she has shaken the girl and accidentally
let her go. She was arrested on Aug. 1. In November of 2014, Small was sentenced to “Life in Prison without parole” over Alex’s murder.
The child placement agency, Texas Mentors, which had placed Alex in the Small home was found to have not conducted proper background checks before placing her there.
While searching for some of the early stories on Alex Hill I Googled: “death of 2 year old foster child under investigation” and found 3 more cases I had not heard of showing you just how bad this situation is.
For Profit Foster Care under Investigation
In April of this year, National Mentors came under heavy scrutiny over how it operated its “Fostering For Profit” enterprise. Soon after the BuzzFeed.com article come out it was announced that this $1.8 billion enterprise was being investigated by the Senate Finance Committee. It was reported that the company had withdrawn their foster care services in in Maryland and Texas, Illinois, and Massachusetts.
And This Is Where the Problem Lays
Money seems to be the driving force over actual child safety.
Yes any and everybody have their hand out to get their share of the $7.9 billion in federal funds allocated for Child Protection. This includes courts, judges, attorneys, foster care providers, therapists, drug & alcohol testers, psychologists and so forth. The list of agencies with their hand out is quite long.
While many think that the states make money off of this system and it is true they are reimbursed about 45-52% on money spent, but that money is rolled back into the system. Therefore there is no true profit.
Now that does not mean placing a child into foster care does not create revenue streams. A family for which no one within draws child support can be flipped to where they must now pay allowing courts to now collect Social Security Title IV-D funds. Children formally not on Medicaid are placed on it and sent to providers thereby generating additional revenue.
The Feds Created a Monster
This seemed to begin with a series of Federal acts mandating child protection beginning in 1973, when U.S. Senator Walter Mondale wrote, “Nowhere in the Federal Government could we find one official assigned full time to the prevention, identification and treatment of child abuse and neglect.” Through Mondale’s efforts the Child Abuse Prevention and Treatment Act of 1974 (CAPTA) solidifying the Federal government’s role in child protection. And in 1978, Congress enacted the Indian Child Welfare Act (ICWA) to establish standards for dealing with Native American children.
By the late 1970s, the number of children in long term foster care was rising at an alarming rate resulting in Congress passing of the Adoption Assistance and Child Welfare Act of 1980 (AACWA) which required states to make “reasonable efforts” to avoid removal of children along with requiring the same efforts for reunifications. This Act created the “permanency plan” to move toward either returning the child or termination of parental rights. For children that could not return home Congress provided financial incentives for adoption, along with stipends for adoptive parents who adopted children with special needs. During this time emphasis was still around “Family Preservation“.
By the end of the 1990s, foster care was over capacity. Judges and caseworkers were allowing children to linger in foster care for far too longer time. This was also the period where the United Nations Convention on the Rights of the Child (UN-CRC) came into existence and was ratified by every country with the exception of the United States. The key component of the convention replaced Parental rights with “the best interests of the child” which is defined, ultimately, by an international committee of 18 people in Switzerland. While the United States did not ever ratify this treaty many aspects of the convention began showing up in our laws. Much of the UNCRC mindset was reflected in the Adoption and Safe Families Act Of 1997 (ASFA).
One of the chief authors of ASFA, Richard Gelles said in a 1997 PBS interview:
“We’ve done such a poor job of protecting the children at the highest risk, we’re going to focus our energies on them. We’ll have to accept the fact that we’re going to sweep in on families who we in the past wouldn’t have involved. We’re going to terminate parental rights in the past we wouldn’t have terminated. We’re going to remove children from a home that in the past we wouldn’t have. And that is the price-tag for child safety.”
As a result of these federal acts we are seeing a system that funded upside down. More money is spent to remove children than to keep them home with the family. In this funding chart we see the ratio of funding used to break up the family compared to that keeping the child at home. The chart is proportional showing less than 10% is used for prevention.
Now, twenty years later we see that this philosophy is killing children. Let alone they are violating the parents right to raise their children along with violating the child’s right to be raised by family.
But Family Law Is Actually A State Issue Not Federal
Acknowledging that in most instances Child Protection issues fall upon the states because as early as 1888, SCOTUS stated that the states had jurisdiction over the family endorsing state regulation of family laws, including marriage, divorce, childrearing and inheritance with Maynard v. Hill 125 US. 190, (1888). Later they also quantified that Congress may not simply commandeer the legislative and regulatory processes of the states in New York v. United States, 505 U.S. 144 (1992).
Some Case Law
Our State Appellate and Federal District Courts and up to the U.S. Supreme Court, all of which affirm, from one perspective or another, the absolute Constitutional right of parents to actually BE parents to their children.
Parent interest is of “the highest order,” and the court recognizes “the vital importance of curbing overzealous suspicion and intervention on the part of health care professionals and government officials.” Thomason v. Scan Volunteer Services, Inc. (8th Cir. 1996)
The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14. Doe v. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan, (1985)
Law and court procedures that are “fair on their faces” but administered “with an evil eye or a heavy hand” was discriminatory and violates the equal protection clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 US 356, (1886)
A parent’s right to care and companionship of his or her children are so fundamental, as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments of the United States Constitution. In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super, at 489
A child has a constitutionally protected interest in the companionship and society of his or her parent. Ward v. San Jose (9th Cir. 1992)
Children have standing to sue for their removal after they reach the age of majority. Children have a constitutional right to live with their parents without government interference. Brokaw v. Mercer County, (7th Cir 2000)
No one has the right to violate these rights which too have been addressed by SCOTUS.
Child’s four-month separation from his parents could be challenged under substantive due process. Sham procedures don’t constitute true procedural due process. Brokaw v. Mercer County, (7th Cir 2000)
When the state places a child into state-regulated foster care, the state has duties and the failure to perform such duties may create liability under §1983. Liability may attach when the state has taken custody of a child, regardless of whether the child came to stay with a family on his own which was not an officially approved foster family. Nicini v. Morra (3rd Cir. 2000)
This extends to the courts also.
The US Supreme Court states: “Any judge who does not comply with his oath to the Constitution of the United States, wars against that Constitution and engages in violation of the Supreme Law of the Land.” In re Sawyer, 124 U.S. 200 (1888)
“No man in this country is so high that he is above the law. NO officer of the law may set that law in defiance with impunity. All the officers of the government….are bound to obey it.” Butz V. Economou, 98 S.CT. 2894 (1978)’; Unites States v. Lee, 106 U.S. at 220, 1 S.Ct. at 261 (1882).
Recognizing these issues it is not very difficult to see why there must be foster care reform. We must get our child protections system away from the “Snatch the kid and run!” mentality. We drastically need awareness. With less than 3% of the US population having been effected by this broken it still will come to over $2.2 million children.