Reforming Washington courts to mend, not end, family ties

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Imagine you’re a parent struggling to get it together while the world keeps falling apart around you. The baby’s crying, the twins are fighting, and you’re two months behind on the rent. You lose it one evening, and give one kid another slap upside the head to make them stop fighting. It leaves a mark, a teacher sees it and notifies Child Protective Services, and suddenly your kids are in foster care. You’re in dependency court on charges of abuse.

Or maybe you can’t get out of work one day, and can’t get your sister or neighbor to watch the kids. Childcare would cost more than the $9 an hour you make, so you leave your 11-year-old to look after the 2- and 5-year-olds. The authorities get wind, and the outcome’s the same with the CPS, except the grounds are neglect, not abuse.

When it comes to families that the state breaks apart, media attention and public awareness tend to fixate on the most horrific side of child welfare — sensational cases of sexual abuse, imprisonment, and torture. But two-thirds of the cases that CPS brings against parents are for neglect, not abuse.

Most neglect cases, and many abuse cases, have their roots in everyday ills — from addiction and mental illness to unemployment, homelessness, inadequate medical care, and lack of basic life and parenting skills — rather than profound pathology. And most, it’s now realized, are correctable, given the right tools, training and assistance. But the traditional dependency court system has been more geared to termination — terminating parental rights and consigning children to foster care and, if possible, adoption — than to helping parents become fit to reunite with their kids.

These are fraught decisions at every step, with lifelong consequences for children and parents alike. “People don’t understand that nothing except the death penalty is as bad as losing your children forever,” says Craig Smith, a former criminal defense attorney in Spokane who now represents parents and children in dependency cases there. “This is an incredibly complex area of law and behavior,” says Casey Trupin, coordinator of Columbia Legal Services’ Children and Youth Project. Dependency court is a catchment basin for just about everything that goes wrong in people’s lives; it all comes home to endanger children and break up families.

“With criminal cases and lawsuits, you’re dealing with things that have already happened,” notes Spokane County Superior Court Commissioner Michelle Ressa. “But with families, conditions keep changing while you make decisions. You might return a child to a parent who, that weekend, will relapse onto meth. Is it just one relapse? You need to know the person to determine the risk.”

Thousands of this state’s most troubled and fragile families are caught up in the dependency process, a tally of torment that soared during and after the recent recession and plateaued at a record level in 2013. In 2014, Washington’s Department of Social and Health Services – of which CPS is a part – investigated nearly 35,000 allegations of child mistreatment and removed 6,711 children from their families, due to what were deemed immediate threats to health or safety. The agency filed dependency cases for 5,067.

Meanwhile, 1,432 children reached the “termination” stage and became, in the somewhat Orwellian official term, “legally free.” This means they were permanently, legally severed from their parents and eligible for adoption. That was a 10 percent hike from 2010, a period of time in which the number of kids in the system grew, but the adoption rate shrunk by 17 percent. And so the backlog grows. Last year more than 8,000 children waited in foster care or in the care of relatives or other guardians, pending termination or reunification, or awaiting adoption.

Drugs and alcohol figure in a huge share of cases — half to three-quarters, in the experience of various attorneys and social workers who handle them. So does mental illness. “If you have bipolar disorder, you can parent just fine as long as you get your medication,” says Laura Hughes, another veteran family lawyer in Spokane. “But if you lose your medication, everything falls apart.” After the state cut back support for mental-health services, “we had a spike in parents coming in with mental-health issues.”

“I would say 100 percent of the parents coming in have post-traumatic stress,” says Trina Coleman, a social worker with the state Office of Public Defense in Spokane specializing in dependency cases. “If it isn’t their own upbringing, it’s the traumatic experience of living in poverty and the traumatic experience of seeing CPS involved. I’d say poverty is the number one issue.”

Even the attorneys representing these parents can feel stressed and helpless in traditional dependency court. “When I started as a public defender in 2005, we ran 100 to 120 cases at a time,” says Hughes. “We were pretty much just reactive, in court all the time. We didn’t have time to work the case for the parent. We were processing paperwork [on the way to] termination.” The same was true for the judges and commissioners on the other side of the bench, says Spokane County commissioner Ressa: “Traditional courts would tend to make knee jerk decisions, to take the child away from the parent, because they didn’t have the time, history or relationships needed to make a more thoughtful decision.”

Small wonder that only a small share of cases — 28 percent in Spokane County, according to Smith — ended in reunification. For all its serious consequences and the special demands it places on those working in it, dependency court hasn’t tended to be the specialized operation it sounds like. It’s one of many dockets handled by each county’s superior court or courts. In small counties, a single judge presides over everything, a situation that has its up and downsides, depending on how sympathetic and attentive that judge is. He or she may lack training or experience, but as the sole arbiter will at least get to know the families involved.

In larger counties, judges and commissioners typically rotate in and out of dependency duty without specialized training. As in other dockets, they see cases as they come in and out of court, retracing the history and reinventing the wheel each time; parents and kids pinball between judges — who become one more unstable factor in lives already turned upside down. Typically, state attorneys and public defenders would specialize in certain stages of cases, such as the initial “shelter hearing,” rather than seeing them through to the end.

“The traditional court docket didn’t serve families well,” says Ressa, who got to know that docket only too well working for 10 years as an assistant attorney general in the family courts of five Washington counties. “It worked like any other docket — civil, criminal. People would come in at 8:30 on the day they were told and wait to get called. They might have to wait six hours or more. They’d have to choose between essential appointments.” Blow off the court or blow off work and maybe lose your job? Skip your hearing or skip your court-ordered drug therapy, or perhaps a hard-won visit with your child? Either way, it was one more step toward losing your kids forever. “It just added stress where stress was not needed.”

The result, all too often, is despair and resignation. “Parents get caught up in their own lives,” says parents’ attorney Smith. “They lose momentum to get their children back. If they’re in poverty, they don’t have money or a place to live, don’t know where kids are, don’t know if they’ll get them back. People in dependency cases don’t trust anyone. They think we work for the Department [of Social and Health Services]. They think the commissioner works for the department. They think we’re all the man.”

No one in the trenches seems to think the traditional system serves mistreated kids, their troubled parents, or society’s interests very well. Various legislators and Seattle-based nonprofits – the Center for Children and Youth Justice, spearheaded by former Supreme Court Justice Bobbe Bridge; Amara, a former orphanage now dedicated more to assuring good homes for vulnerable children; and the Thomas V. Giddens Jr. Foundation – have labored, against the budgetary currents, to lay down a path to reform statewide.

The state’s largest counties have also taken up the challenge in the past decade. Spokane County has taken it furthest. In January 2007 it drastically overhauled its dependency courts to give commissioners (who handle family law cases there) the chance to make thoughtful decisions, and provide families the continuity and predictability they needed.

No longer would commissioners, defenders and others tag-team cases according to what showed up in whose docket. They would work together as teams, with each state or parents’ attorney, social worker and guardian ad litem (a court-appointed representative of the children’s interests) attached to a particular commissioner. The commissioners and their teams handle cases from start to finish. Each of the six Spokane commissioners (who also handle other types of cases) holds dependency court on the same day each week, with scheduled hearings rather than hurry-up-and-wait dockets. Social workers no longer need to come to court every day and wait their turns; they can spend the other days doing actual social work. The King County courts have implemented a similar schedule, allowing each social worker to spend just one day in court.

This helps parents plan ahead, and helps keep their cases keep moving forward: “We’re much more efficient now,” says Smith. So deeply has the collaborative model taken root in Spokane that he — the adversary attorney — has sat in on interviews to hire a new social worker. Commissioner Ressa says her staff members are able to resolve many cases and establish plans for correcting parental deficiencies without ever coming into court. King County Superior Court doesn’t use teams, but it promotes speedy, amicable resolution through mandatory mediation in dependency cases.

When they do get into court, dependency cases take a toll even on the judges and commissioners who conduct them. “It’s easy in this field to become cynical or burned out,” says Ressa. “You’re presented with truly awful fact sets,” and in the traditional docket system, you may see just one grim snapshot without knowing how things work out.

To prevent burnout, King County rotates the commissioners on its dependency bench every two years, a practice that has its own pitfalls. For Ressa, Spokane County’s system, with no term limits on the dependency bench and all six commissioners dividing the cases, offers a better antidote. “You need to see cases through to the end game — to see people pull their lives together from the most horrible situations. I’ve learned that people can pull through. It gives me hope. If the judicial officer does not believe a family — a person — can change, then what is the point?”

“I really do think the judicial rotations need to be longer” to assure continuity and stability, says Jennie Laird, one of two court commissioners handling King County’s dependency cases. In Snohomish County, two judges head teams that stay together indefinitely, each of which covers dependency cases in half the county. But the judges themselves rotate every 18 months. Anne Brice, a veteran parents’ attorney there, says that an approaching rotation brings a rush to push cases to resolution — reunification or termination — before a new judge comes in and has to get up to speed.

Moving cases through the system efficiently is the grail of dependency law, to shorten the ordeals of uncertainty, separation and foster care. A 2013 study in the journal Evaluation Review found that “children in counties with unified family courts [such as Spokane’s and Snohomish’s] experienced shorter foster care spells and higher rates of reunification with parents or primary caregivers. Shorter spells in foster care translated into improved school performance measured by end-of-grade reading and math test scores.” Statewide, kids who are eventually reunited with their families stay an average 15 months in foster care. Those who are permanently separated and put up for adoption spend on average 27 months.

But there are limits to efficiency, Snohomish attorney Brice argues: “These people did not get here in a day, they’re not going to get out of here in a day. A lot of our clients, we meet them on the worst days of our lives. They need to work through things. If you want to move toward termination in six months, they may not get the full benefit of the measures the judge orders.”

Still, 18 months can seem like a very long time, Brice concedes, if a judge has what Brice calls “an attitude” toward dependency cases or a particular family; there’s no getting away from it for that judge’s tenure on the dependency bench. Forget about judge shopping.

Personalities — not just judges but all team members — are a big variable in team systems like those in Spokane and Snohomish. “It can work well or it can work wrong and be a disaster,” says Smith, depending on how team members get along. Still, he adds, nearly all the teams work well; attorneys and others learn to give and take and moderate their adversarial ways. On the whole, Brice admits, “the positives [of the team system and specialized dependency court] outweigh the negatives. There’s a more level playing field for parents.”

Smith voted with his feet. He shifted from criminal law to dependency court when Spokane County instituted its collaborative system. “It was the right time and place to be,” he explains. “It’s one thing to get a defendant’s sentence reduced. It’s another thing to keep someone from losing their kids.”

Court statistics and independent evaluation suggest these approaches are helping more parents become fit, and keep their kids. This is in combination with two other much-praised innovations: “Family assessment response” (FAR), which DSHS uses to assist struggling families without filing dependency petitions, and “parent-to-parent” mentoring by veterans who’ve been through the dependency process (see Crosscut's recent story, "Parents saving other parents, and their neglected kids). Spokane County has reduced its share of dependency cases ending in termination from 28 to 52 percent. A study of King County’s dependency court found that mediation reduced average child-welfare case time by about 40 percent and raised the share ending in reunification from about 40 to 60 percent.

State attorneys are likewise enthusiastic. “The Attorney General’s Office supports the teaming approach,” says Carrie Wayno, an assistant AG advising the DSHS Children’s Administration. “We’ve seen the benefits where it’s been implemented. The consistency of decision making on the attorney and judge side does benefit families, and it is more efficient. But it requires funding.”

And that’s a rub. The counties have acted as “laboratories of democracy,” incubating new and better ways to handle dependency cases, sometimes without additional money, sometimes with piecemeal temporary funding. The DSHS grant that supported King County’s successful mediation program ended, reducing its mediation staffing by a third.

In the last legislative session, however, child-welfare advocates lobbied for a “One Family–One Team” public-private partnership to extend the cooperative model statewide. The final state budget provided $75,000 to design a model program and plan pilot implementations in two to four counties. The Giddens Foundation matched that sum, and Amara and the Center for Children and Youth Justice, which is staffing the project, have already embarked on it. Come January, they’ll return to Olympia to plea for funds to launch those county pilots, and hit up some bigger foundations.

If they and other reformers succeed, the bad old days of child-snatching bureaucratic delay, opacity and inertia may someday be just a memory.

Disclosure note: The Giddens Foundation has supported reporting for Crosscut's Kids at Risk stories. 

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About the Authors & Contributors

Eric Scigliano

Eric Scigliano

Eric Scigliano's reporting on social and environmental issues for The Weekly (later Seattle Weekly) won Livingston, Kennedy, American Association for the Advancement of Science, and other honors. He has also written for Harper's, New Scientist, and many other publications. One of his books, Michelangelo's Mountain, was a finalist for the Washington Book Award. His other books include Puget SoundLove, War, and Circuses (aka Seeing the Elephant); and, with Curtis E. Ebbesmeyer, Flotsametrics.