Innocents Lost: How Florida's DCF system could be reformed

Miami HeraldMarch 24, 2014 

MONTGOMERY, Ala. -- A quarter-century after a federal class-action lawsuit, Alabama's child welfare system is among the national models, a new and improved system built on a cultural shift and a focus on the parent's protective capacity -- that is, can the caregiver keep the child safe?

Alabama is consistently ranked among the top states for some child safety and protection measures. In 2012, 1.6 percent of Alabama children who came in contact with the child welfare agency were mistreated again within six months. In Florida, the number was 7.2 percent, according to the U.S. Department of Health and Human Services.

"Child safety trumps everything," said Carolyn Lapsley, deputy commissioner for Children & Family Services for the Alabama Department of Human Resources. "We don't have a separate family preservation policy -- that is woven throughout our approach.''

The Florida Department of Children & Families -- criticized sharply in the aftermath of several high-profile child deaths last year -- now faces similar challenges.

Gov. Rick Scott has promised to allocate an additional $40 million to child protection efforts in his budget

recommendation this year. That would be money for hiring more than 400 additional investigators, reducing caseloads, increasing internal oversight and steering resources to sheriff's offices that investigate child abuse reports in some jurisdictions.

A year ago, the Legislature voted for an $80 million cut in DCF funding, which grew to $100 million after the governor's vetoes.

The agency, which has consulted recently with national child welfare foundations, says it is already implementing recommended changes, including a new decision-making method for child protective investigators to better assess safety and risk.

DCF interim Secretary Esther Jacobo and other leaders in Tallahassee spoke over the past week of the need for more money to rectify the agency's problems, potentially more than the $40 million Scott has proposed.

Florida reform

It took a federal lawsuit and decree to make dramatic changes to Alabama's system. Florida children's advocates are hoping a motivated Legislature, flush with more than $1.3 billion in new revenue from an improving economy and rising tax receipts, can bring about the same results.

Here are some of their ideas for reforming the agency, as well as those offered by DCF consultants -- and some measures that have worked in other states:

• Enshrine in state statutes that when the rights of parents clash with efforts to safeguard their children, the child's safety is paramount.

Although no longer etched in law, the presumption that parents' rights to their children trump children's rights to safety and welfare persists, said Daniel Armstrong, vice chairman of the University of Miami's Pediatrics Department. "It's an implicit belief that comes through in practice," he said. "We have to correct that practice."

"Children are not the property of parents or other adults. They are our cherished responsibility. Our approach as individuals, a state, a nation, and a world should be based on the recognition that this may be the most important responsibility we have," said Armstrong, also director of the Mailman Center for Child Development.

Last week, after reading part one of the Herald's investigative series on 477 child deaths, "Innocents Lost," state Sen. Eleanor Sobel vowed to rewrite proposed legislation before the Children, Families and Elder Affairs Committee she chairs. Where the current law mentions preserving the family, she said she wants it to read "the best interest of the child shall be the first priority, and then keeping the family intact."

• Restore a law that requires child abuse investigators to file a court petition to protect children when an assessment determines they are at "high" risk if left with their parents.

That provision was repealed two years ago as part of a legislative revamp that bore the name Nubia Barahona, a 10-year-old Miami twin who was tortured, beaten and killed, allegedly by her DCF-approved adoptive parents.

Absent a court's involvement, parents can refuse domestic-violence counseling, drug screens and drug treatment, which they frequently do, the Herald's investigation found. Before it was repealed, the measure encouraged more court interventions.

"There is no other way to compel parents to get the services they need in order to keep their children alive and safe," said Andrea Moore, a children's advocate who served on several panels, including the 2011 Child Protection Task Force formed in the wake of Nubia's death. "Drug abuse can't be cured with a promise. Mental illness and domestic violence don't get resolved on a promise." There has to be a reason, such as a court order, for troubled parents to recognize the seriousness of their situation."

• Overhaul the agency's safety plans -- promissory notes signed by caregivers pledging to quit abusing drugs or engaging in other behavior that endangers their children. The Herald's investigation of 477 child deaths over six years found that in more than 80 of the cases, parents had signed safety plans, in some cases multiple plans.

Fixing safety plans will require making them verifiable, which means mandating drug tests, having caseworkers make unannounced visits to the home, and other measures. A report by the Casey Family Programs, a consultant DCF asked to study the agency's operations after last year's spate of high-profile child deaths, said such "promissory" plans don't work. At a hearing this past week in Tallahassee, Jacobo also said as much, adding changes are being made.

• Fix the the child welfare legal system. The Herald's study of child deaths found that in at least 49 cases, children died after a lawyer overruled staff and said the department didn't have legal cause to file a court petition on behalf of a vulnerable child. Filing a court petition and advocating for it costs money. If an agency's policy is to try to preserve the family wherever possible and conserve resources, a lawyer employed by that agency might be conflicted.

"Children's Legal Services was created as a separate division to be more independent, but in a heavy-handed, procedure-driven bureaucracy like DCF, lawyers are like other bureaucrats in focusing on internal dynamics and shifting philosophies and priorities," said Neil Skene, a lawyer and former journalist who worked as special counsel for DCF in the late 2000s.

"Lawyers independent from DCF, and I daresay independent of the governor and Legislature, will provide critical thinking, creativity and strong advocacy focused on the children themselves -- their safety and well-being -- that appears to be still missing on behalf of children," he said.

Additionally, advocates have argued, children should be entitled to the representation of a lawyer when they enter the child welfare court system. When a child is removed from his or her parents, or when DCF asks a judge to order parents to accept help from the state, the children are the only party to the litigation who do not have the right to a lawyer.

Children may be appointed a lay guardian, known as a guardian ad litem, but such advocates usually do not have the benefit of a law degree, or the confidence such a degree often confers.

• Better salaries, training, resources and oversight for DCF investigators. The starting salary for a child protection investigator is $39,600, and that is after a recent boost in the wake of Nubia Barahona's death. A Child Protection Specialist position currently advertised in Illinois offers a salary of about $51,500.

For decades, task forces and grand juries recommended that front-line workers receive beefed-up training to prepare them for their their mission. Money for such upgrades came and went. When scandals erupted over particularly grievous or preventable deaths, salaries and training improved. When the scandal faded, so did the upgrades.

"The single most important improvement any system can make is to ensure it has a well-trained workforce with workloads that meet national standards," said Jess McDonald, who headed Illinois' child welfare system from 1994 through 2003, a period of improvement. "Of course, good supervision and management are necessary as well, but without a solid and professional workforce the child protection system will never improve. That is an absolute, rock-solid guarantee."

McDonald added: "This is a first responder system, and it must always have in place a competent and sufficient workforce to respond timely and appropriately to reports of abuse and neglect. It needs to understand the dynamics of abuse and neglect, be able to observe and collect information on conditions and behaviors, be able to analyze the information and make decisions based on information. In short, the workforce must be able to think and act critically to each and every report that comes to its attention."

• Restore meaningful oversight.

In the 1990s, the state's social service system was overseen by several watchdog groups, including Local Advocacy Councils -- as well as their umbrella, the Statewide Advocacy Council -- and the Health and Human Services boards in most counties. Currently, the advocacy councils exist only in statute, as they were essentially written out of the state's spending plan. With no staff or resources, they withered and died.

The statewide group had, late in its life, become a thorn in DCF's side, culminating in a 2004 report laying bare the state's reliance on mind-altering psychiatric drugs as so-called chemical restraints for unruly foster children. The report said DCF had allowed infants and toddlers to be administered drugs that had never been proven safe or effective for use among children, let alone babies.

"As I have read of some of the horrendous things happening in the child welfare system, I can't help but think of how many of those may have been prevented if this oversight had not stopped," said Betty Busbee, a former DCF client relations coordinator who spent two terms as chairwoman of the Statewide Advocacy Council.

• Embrace transparency.

In Pennsylvania, the Department of Public Welfare posts on its website reports on deaths or near-deaths involving suspected child abuse or neglect. Some portions are redacted. In Arkansas, too, all child abuse and neglect deaths and near-fatalities are published on a child welfare agency website once the investigation is complete.

Florida does not post its death records online. It took more than a year for the Herald to obtain six years of death reviews, a process that involved paying considerable records costs and going to court over redactions

Another transparency issue: The statewide Child Abuse Death Review Committee has made an annual plea that DCF provide it with reports on all child deaths -- not just those verified for abuse or neglect -- so the team can more comprehensively analyze trends. The requests have been ignored by the Legislature.

Longstanding complaints

Florida children's advocates long have complained that agency bosses chafe at suggestions and criticism.

"Government is not infallible. It makes mistakes," said Kurt Kelly, a former GOP lawmaker who now heads the Florida Coalition for Children, an association of community-based care groups -- the agencies that run Florida's privatized system of foster care and adoption with funding from the state. "And when it does, we need to be prepared to own up to it, to learn from it, and to make the right decisions, and never make those same mistakes again."

In Alabama, that is what happened. Eight-year-old R.C., as he became known, formed the basis of a 1988 lawsuit against the Alabama Department of Human Resources. The boy, who had attention deficit hyperactivity disorder, had been removed from his home amid allegations of abuse or neglect and placed in foster care. He was shuffled from place to place, allegedly heavily medicated, and sent to a psychiatric ward.

Three years later, a federal court issued the R.C. Consent Decree calling for changes in the way the agency handles foster children needing mental health treatment. The state was released from the decree's oversight in 2007.

Something else happened: child welfare leaders used the decree as a way to reform the entire system.

"Ours was a system that definitely needed an overhaul,'' said Lapsley, the deputy commissioner. "The lawsuit was very specific, but we viewed this as a way to make the entire system better.''

Since the early 1990s, the state substantially increased its child welfare spending, with some of the funding coming from the federal government. The key to reform, said Lapsley, was expanding the kind of community services needed to mitigate the risk of keeping a child in a home while on the radar of the child welfare agency. Lapsley said her state also built a culture in which the focus is on whether each parent has the ability to keep a child safe.

Reforms also included practical rather than lecture-based training, lower caseloads (caseloads for foster care workers dropped from about 50 to 18 children each) and a flexible budget to pay for tailored social services at the county level.

In every county, Alabama also launched Quality Assurance Committees that operate as an independent review board. The volunteer group, made up of community members such as attorneys, teachers, pastors and healthcare professionals, not only review a random sample of cases, but also conduct their own interviews, including speaking with children themselves.

"One of the things we learned during the reforms is that we needed to have people from the outside look in,'' said agency spokesman Barry Spear. "We needed another set of eyes, so we could learn and improve.''

-- Herald/Times Tallahassee bureau chief Mary Ellen Klas contributed to this report.

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