Advocates see a deck stacked against parents in DCF cases

New London — Lawyers and others who deal with child welfare cases say that once the Department of Children and Families takes a child from a home and wins temporary custody, the deck is stacked against parents.

“The decision to remove a child legally does not involve any kind of balancing,” said Paul Chill, an associate dean in the University of Connecticut School of Law. It looks at the risk parents present to a child, but not the risk of foster care to a child, he said.

Chill ran a legal clinic at UConn law school from 1989 until 2004 that represented parents in cases against the agency.

“They describe it as ‘erring on the side of safety’ and, in fact, it’s not,” Chill said. “You’re taking a risk either way. The question is, which risk are you going to take? And it’s not seen that way in the system. It’s always a one-way analysis. Are the parents a risk? And if so, let’s remove the child.”

In November, a toddler nearly died of starvation in a Groton foster home after being removed from his parents’ home in New London. The Office of the Child Advocate released an investigation Oct. 4 that found that Department of Children and Families employees failed to protect the child, whom they call “Dylan,” despite warnings that something was wrong in the foster home.

The foster mother, Crystal Magee, of Groton was charged in February of risk of injury to a minor and cruelty to persons, both felonies. Magee is a cousin of the child’s mother. The mother, Kirsten Fauquet, said she pleaded for help, but no one would listen to her.

The department disciplined three employees in connection with the case; two were suspended for three weeks without pay and a third was suspended for four weeks without pay. The child suffered untreated broken bones in addition to near starvation. Fauquet said she plans to sue the state on behalf of her son.

The case sparked outrage about its handling by caseworkers and others but also raised questions about the system itself:

• Does the agency have too much power?

• Are parents adequately represented? 

• Can DCF help families while also building a case against them to potentially terminate their parental rights?

Chill said DCF Commissioner Joette Katz has made the department more progressive by removing fewer children, opting to place more with relatives and balancing the risk of foster care. She understands that there is risk regardless, he said.

But even with her at the helm, the message may not trickle down to the rank and file, he said.

Ombudsman Ken Mysogland said the department recognizes that removing children from a home can harm them emotionally and psychologically. The department's goal is to keep families together and removing children is a last resort, he said.

“We understand and acknowledge that child protective services is extremely difficult work and, at the same time, parenting, providing stability, love, nurturance and a conducive environment for your children is also very difficult,” he said.

DCF spokesman Gary Kleeblatt provided two pages of reforms by Katz since her appointment in January 2011, including a directive that relatives and “kin,” or people with an established relationship with a child, be the first option for those in DCF care.

The agency reported a 12.7 percent decline in the number of children in care from January 2011 to Sept. 1, 2016.

“We want to have fewer children in care. So the idea that we are not being exceedingly careful is false,” Kleeblatt said. He also disputed the notion that parents cannot get their children back. Half of children removed from their homes are returned within 12 months, he said.

When the department removes a child, it does so after consulting with multiple staff at many levels of the agency, Mysogland said. The attorney general’s office also requires that there be sufficient basis before a child is removed, Kleeblatt said.

Poor people's court

When Chill was head of the UConn law clinic, he had a team of students to work on individual cases and, as such, a lot more resources than most. They celebrated the occasional victory, he said.

“It would take mountains and mountains of work, we would have to fight endlessly for everything we got,” he said. “And I remember thinking to myself, ‘This is ridiculous.’ No lawyer would have the time to do this.”

The quality of legal representation has improved considerably since that time, Chill said, praising the Office of the Chief Public Defender.

But Juvenile Court is also poor people’s court, lawyers said. Most parents and children involved with DCF are represented by publicly appointed attorneys. Lawyers under contract with the public defender’s office are paid $500 for a DCF case, with additional $50 hourly payments for services like visiting clients, attending DCF proceedings and preparing for trial.

Attorney Denise Ansell handled 100 to 125 cases a year for about 17 years, she said.

“I always put my clients’ best foot forward regardless of what amount, if any, we were being paid,” she said. “I don’t think everybody does that. And I don’t think, to tell the truth, that was very appreciated."

While lawyers are ethically bound to "zealously" represent their clients, some represent their clients only as zealously as they are being paid, she said.

A study published in 2007 and 2008 by Joseph J. Doyle, an economics professor at MIT's Sloan School of Management, found that children in foster care were two to three times more likely to end up in prison and 40 percent less likely to be employed than those in similar conditions who remained with their parents.

Doyle said he looked at children in Illinois during the 1990s, comparing data on 15,000 to 35,000 people, depending on the data set. He eliminated extremes to study marginal cases that could be argued either way. His point was not to argue against foster care but to mimic a clinical trial and compare similar children — some who went to foster care and some who did not. Agencies tend to place many more children in foster care after a scandal involving something that happens to a child, he said.

"There's tremendous and understandable pressure on agency workers if a child is hurt or killed following an investigation," Doyle said. By comparison, there's less pressure on the agency if foster care results in worse outcomes that aren't seen until years later, he said.

Christopher Oakley, an attorney from Middletown who has represented clients in DCF cases for 10 years, explained how the process works. DCF may take a child for 96 hours without a court order if it believes a child is in imminent danger of physical harm.

Before the 96 hours ends, the agency must obtain a judge’s signature on what is called an “ex-parte order of temporary custody” to keep the children. A judge makes this decision solely on the basis of one or more affidavits filed by the agency alleging abuse or neglect, Oakley said.

An initial hearing then is scheduled within 10 days. This is the first opportunity for the parents to respond, he said. If a parent has no money and seeks counsel, attorneys under contract with the public defender are appointed on the spot in the courthouse and introduced to the parents, all within about five minutes, Oakley said.

Parents then can discuss what they want to do; if they want to contest the allegations, they have the right to a hearing within 10 days. Any number of agreements also may be made in court, such as the child going home with a different parent, he said.

If the case goes to trial, parents, who may be poor, uneducated or both, and their court-appointed counsel are up against college-educated social workers backed by an agency with access to the resources of the attorney general's office, he said.

Barbara Claire, legal director for DCF, said affidavits are “very extensive,” and the department follows a longstanding legal procedure similar to one used to obtain a restraining order or search warrant. She also said DCF meets with families to discuss its concerns and, if a safety plan is agreed on, the case doesn’t go to court.

Cases that go to court tend to be the most complicated, she said. “These are the hardest, most intractable cases, so that’s why I think it feels like people are up against a wall,” Claire said.

In Dylan’s case, a social worker visited Fauquet on June 11, 2015, two weeks after she had delivered her fourth child. The social worker “observed the home to be unsanitary with food and garbage on the floor, the sink full of dirty dishes and the children being dirty,” according to a petition to remove the children. The petition also cited mental health concerns and ongoing housing and financial issues among reasons for removing the children.

Fauquet said she agreed to let the social worker take the children to a relative so she could go to the doctor. The next morning, she and Dylan’s father, John Stratzman, were told that a meeting would be held at the DCF office in Norwich, she said.

They walked in with no lawyer. A judge had signed an ex-parte order of temporary custody, Fauquet said.

The agency took Fauquet’s children on an emergency 96-hour hold, then obtained the ex-parte order of temporary custody, which was later sustained. The parents then entered a plea of no contest and the children were "adjudicated neglected,” and committed to the care and custody of the DCF.

Fauquet said she pleaded no contest because she was told it was the fastest way to get her children back. “We were bullied into it,” she said. “We were told this was the only way we would get our kids home by our lawyers and the kids’ lawyers.” Her current lawyer, Lisa Vincent, was not representing her at the time.

Vincent said she is trying to reunify the children with their parents.

The attitude test

Richard Wexler, the executive director of the National Coalition for Child Protection Reform, said he believes one reason Fauquet lost her children was that she “flunked the attitude test.” This was evident in an email from the family's former caseworker, in which he appeared to “gloat” about how the parents presented their feelings, Wexler said.

“A truly abusive parent who knows how to play the system will suck up to the caseworker,” Wexler said. “'Oh yes,’ this parent might say, ‘Thank you so much for coming into my life. I know I’ve done wrong, and I’m so sorry. Please bestow upon me your ‘counseling’ and your ‘parent education.’”

That parent may be allowed to keep a child when the child really should be removed, Wexler said. By comparison, parents who argue, “I’m innocent, dammit!” because they are innocent may lose their child forever, he said.

Chill, the UConn dean, said he used to joke when he had young children that if DCF ever showed up at his house, they’d take his kids because of the number of uncovered electrical outlets.

“But as a practical matter, I’m white, I’m middle class, there’s all kinds of cultural and probably racial stereotyping that goes on,” he said.

The biggest decision parents must make if the agency shows up at their house is whether to cooperate, Chill said. Agency workers have no right to come into a person’s house without a warrant. But refusing to let a caseworker in could be seen as defensive or like the parent is hiding something, he said.

He usually urges parents to cooperate, but that also can be problematic; parents may do or say things without legal counsel that could be used against them, he said. “You could be damned if you do, dammed if you don’t,” he said.

Social workers also have a difficult task.

“How do you engage with the family and at the same time understand the power you do wield as a government agency?” said Mysogland, the ombudsman. Ultimately, child welfare workers have to recognize the concerns of parents and yet find a way to work collaboratively with them, he said. “Right there is the age-old question of how this work is done,” he said.

The longer a child remains in DCF custody, the harder it is for the parents to get the child back, Oakley said. Federal law requires child welfare agencies to file a petition to revoke parental rights of children who remain in protective care for 15 of 22 months, he said.

It can be difficult for parents to meet all the demands of a court and fix complicated problems, said Christine Rapillo, director of delinquency defense and child protection in the Office of Chief Public Defender. But once the child is removed from the home, the federal clock starts ticking.

The burden also shifts after the agency wins temporary custody of the child, lawyers said. If parents want it revoked, instead of the state having to prove why it should keep the child, parents must prove why they’re fit to get the child back.

Meanwhile, families must cooperate with caseworkers and social workers who have testified against them in court. While the agency reaches out to parents, it also documents their shortcomings and failings. This may later be used to terminate their parental rights.

“I honestly don’t think they’re helping me or my children,” Fauquet said. “If they were helping me and the kids, they would be, for one, taking the kids' feelings into consideration; they would be allowing the kids to spend more than two hours a week seeing each other.” Her children, who have been moved multiple times, are in the care of different relatives or foster parents.

DCF ordered a second psychiatric evaluation of Fauquet, which is scheduled for November.

“They never take our opinions into consideration,” she said. “John and I both feel the best thing for our children is visits at home, so they at least feel like they have a place where they belong. And they still don’t allow the kids to visit home, even if it’s supervised; they have not allowed the kids to be home."

“They don’t think of who they’re hurting. That’s the issue," she said. "They don’t think of who they’re hurting.”

d.straszheim@theday.com

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