Sunday, September 2, 2012

Two parents sue Iowa DHS over kids removed from homes


Lawsuits challenge the use of 'voluntary agreements' signed by parents who have lost their legal rights



State social workers have taken custody of children even when there is no proof of harm by a parent or caregiver, according to two lawsuits filed against the Iowa Department of Human Services.

The lawsuits also allege children are being removed from their homes based on voluntary agreements signed by parents who are no longer the child’s legal guardian.

In a Johnson County case, mother Jessica Wilbur was forced to file a court petition seeking the return of her 8-year-old daughter after the girl’s father alleged child abuse that turned out to be unfounded in 2009. The girl’s father had signed a voluntary placement agreement putting the girl in foster care, but he was not her custodial parent.

“I didn’t understand why I even needed to hire a lawyer,” said Wilbur, the girl’s custodial parent, who now lives in Texas. “I had done nothing wrong.”

Since major changes to Iowa’s child welfare system began in earnest in 2005, DHS workers have had parents and caregivers sign more voluntary agreements to remove children from their homes and place them in foster care. The use of voluntary agreements sidesteps formal oversight and intervention by juvenile court judges.

Roger Munns, a spokesman for DHS, said child-protective workers seek voluntary placements with relatives or foster care parents as a first option — the idea being to immediately get cooperation from parents — if they believe there is abuse, neglect or other unsafe conditions at home. And parents sometimes sign the agreements because a DHS worker has concluded a child is unsafe, meaning that an out-of-home placement is required.

But the state agency is now under fire over its increased use of those voluntary agreements, which result in children being placed in foster care.

Attorney Natalie Cronk of Iowa City has filed two lawsuits targeting the voluntary placement agreements and safety plans, which she says allow children to be taken from custodial parents with no proof they are unsafe.

“The ultimate goal of the children-welfare system, according to federal law, is supposed to be to keep a child safe in their own home,” said Cronk, who said she has come across several such cases. “But there has been this burden-shifting going on in Iowa that requires the parent or guardian to prove their house is safe, but not really defining what safety is.”

In the case of Wilbur, the Johnson County mother, the lawsuit alleges that DHS retaliated against the mother’s fight to get her child back with a “baseless” child abuse investigation.

In a Polk County case, a mother, Tiffany Koder, who lost custody of her two children in a contentious split with her ex-husband, Lance Brown, later alleged abuse by Brown and his new wife. A child-protective worker later had Koder sign a safety plan that prohibited Brown and Bailey Brown from having contact with their kids, despite the fact that Lance Brown was their legal guardian. “No one from DHS informed Lance that Tiffany had signed a safety plan that prevented him from having contact with his children,” Cronk’s lawsuit on behalf of Brown says.

Hospital and DHS workers later found no signs of abuse by Brown or the stepmother, but DHS put one of the children in foster care in 2010 anyway using a voluntary placement agreement signed by the mother. Brown did not get both children back for 83 days, Cronk said.

In both cases, Cronk is seeking a court order stopping DHS from “taking possession and control” of any child from parents who don’t have custodial rights — and seeking damages against DHS workers who do.

DHS has said in its defense that social workers cannot know who has custody when they respond to allegations of abuse.

Wendy Rickman, a DHS administrator overseeing child-protective services, said she could not discuss pending legal cases. However, she said, the growing use of voluntary agreements stems from “huge” criticism, from the federal government and families, that the agency was not doing enough to engage families.
DHS: Focus is family- centered policies

After several high-profile child deaths in the early 2000s, DHS was deluged with child-abuse reports, and Iowa’s child-welfare system was on the brink of buckling from high caseloads, lack of funds, high turnover, lackluster results and too few resources. DHS’s mantra, coined by its director at the time, was: “When in doubt, take the child out.”

Former Gov. Tom Vilsack hired private consultants to seek new efficiencies in state government, and DHS decided to focus the lion’s share of attention on young children who were most at risk.

Today, in the highest-risk cases, prosecutors file formal Child In Need of Assistance petitions on behalf of DHS, seeking to make the child a ward of the state. Many of those children wind up in foster or group homes, and their cases are subject to strict federal time lines to find permanency for the child.

“A (Child In Need of Assistance) petition in court is basically a lawsuit against parents,” Rickman said.

For the bulk of lower-risk cases, DHS uses a range of voluntary services, like counseling and parenting classes, dubbed Community Care, designed to keep the child safe in the home. Workers also rely more heavily on safety plans, written up to put safeguards around children deemed “conditionally” safe. Finally, the voluntary placement agreements lead to more at-risk kids being temporarily moved outside their homes.

Since 2005, the number of Iowa children in foster care has dropped by about 35 percent, according to new numbers released this summer by the Children’s Bureau of the U.S. Department of Health and Human Services.

Top DHS officials like Rickman say the lower foster care numbers reflect a concerted effort to work more closely with families on a volunteer basis, become more transparent and keep children safe in the home, if possible.

At the same time, child abuse numbers nationally and in Iowa have been declining, and many of the child-safety benchmarks measured in Iowa by the federal government have improved.

But more states also have been using voluntary placement agreements, leading some experts to question whether the lower statistics of children in foster care are accurate, since those numbers do not reflect cases not under formal court supervision.

As of 2011, Iowa still ranked fifth-highest in the nation in the rate of children placed in foster care per 1,000 population. That figure does not include those in voluntary placements because they are not “official” foster care cases overseen in juvenile court.

About 28 percent of the children who were in foster care as of the end of June began as voluntary placements.
Do voluntary plans violate rights?

Cronk insists voluntary placement agreements and safety plans violate parents’ rights, but she says parents sign them anyway because they risk permanently losing their children.

How the state uses voluntary placement agreements also bothers those who act as guardian ad litems, or lawyers for children in abuse cases, such as Michael Sorci, who heads the Youth Law Center in Des Moines. Sorci says he is wary of the cases because children don’t have their own advocates, and DHS workers, not judges, make all the decisions.

“Maybe they make sense for cases that are very short in nature,” he said. “But what’s the sense in letting them go on months and months, unless you want to keep it out of courts?”

Sorci said he’s seen the DHS enter into voluntary service agreements on meth, sexual abuse and domestic violence cases. That leaves him concerned about whether children are being returned to unsafe homes.

Some advocates have argued persistently that without the protection and advocacy guaranteed by law, any agreement proffered by an agency wielding power over a child’s custody can seem like a gun to the head.

For years, advocates of parents’ rights like Richard Wexler of the National Coalition for Child Welfare Reform have blasted Iowa’s DHS for a consistently high rate of removing children from homes compared to the state’s child population.

Now Wexler and other advocates question whether voluntary placement agreements, used when a child is considered unsafe, and similar “safety plans,” used when a child is considered only conditionally safe, are helping Iowa and other states report even fewer kids in care to the federal government.

“This is what I have come to call the foster care twilight zone,” Wexler said. “Federal regulations say if a child is out of the home for more than 24 hours, that child has entered foster care.”

Diane Redleaf heads the Family Defense Center in Chicago, the only nonprofit of its kind in the country devoted to protecting parents’ rights in child-welfare cases. Her agency won a class-action lawsuit against the state of Illinois in 2005 over the use of voluntary safety plans, which she said is Illinois’ equivalent to Iowa’s voluntary removals.

The Illinois case was overturned the next year by the 7th Circuit Court of Appeals, which ruled that any safety plan is voluntary under the law.

“The result is that our state still has open-ended discretion to do whatever they want to a child,” she said. “These are complete end-runs around due process rights of both the parent and the child.”

Rickman said Iowa law limits voluntary placements to 90 days. After that, a child must go home or be placed officially in foster care. The state keeps no data on how many children are placed outside the home through safety plans.

Regardless of the actual numbers of kids in out-of-home care, Rickman conceded Iowa’s rate of removing children from homes is still too high. “But we are heading in the right direction,” she said.

To bring more balance to voluntary cases, DHS does try to engage parents in family team meetings, particularly when decisions are made about a child’s placement or if safety factors change in a given home, Rickman said. The meetings attempt to bring all key players in a child-welfare case together, including advocates for children and parents, to resolve factors that put a child at risk.

Rickman said she believes DHS workers are even more mindful today about the rights of parents and wishes of family members who want to help care for at-risk kids. “Ten years ago, we never asked if there was an aunt or uncle who could care for a child,” she said.

At the same time, the use of more voluntary placement and services has allowed DHS to ween its focus to the most critical cases, and rid itself of a once-long waiting list for children who need to be placed in foster homes and shelter care.

“It is a matter of trying to find balance,” she said. “I think we are in very stable shape.”