I Speak For This Child: True Stories of a Child Advocate (60 page)

The solution in our district’s program is to have volunteer child advocates who are supervised by professionals and sometimes are represented or advised by attorneys. The volunteer also offers continuity for children through the court process and often many years thereafter, while the attorney generally only provides legal services, but not monitoring or long-term involvement. In every case where I was the Guardian ad Litem, I became the most stable adult in the child’s life. As appalling as it is to consider, the fact is that parents, foster parents, attorneys, caseworkers, and therapists faded in and out of their lives. Only their advocate remained the same and was always there.

One of the most valuable contributions of lay guardians is their independent and objective viewpoint. When I write a report for a child, I do not consider my remuneration, job security, status in an organization, or professional reputation. I cannot lose money. I cannot be sued. The worst that can happen is I won’t be asked to be a volunteer any longer. If the advocate can mask the noise of the disparate parties and reflect solely on what is best for a child, a very untainted—often creative—solution emerges. For years the Colby sisters languished in one impossible situation after another under the “watchful” eye of HRS’s protective services department. Another guardian assigned to the case might also have seen that the three girls needed to be together in a loving home. But there was no clear administrative path to this outcome. An advocate with perspective was the best way to mobilize unrelated community resources rapidly and turn that situation around.

Court administrators are quick to point out the economic value of volunteer programs. When the Florida legislature was thinking of cutting funding for the Guardian ad Litem program, researchers demonstrated the program saved millions of dollars over what it would cost to pay attorneys to represent children in court. But the fact that an area does not currently have a volunteer children’s court advocate program should not be discouraging. New programs continue to be developed and older models are beginning to integrate volunteers. In 1992 the National Court Appointed Special Advocate Association (NCASAA) reported that sixty percent of the programs that use volunteers place them in the capacity of Guardians ad Litem. Other groups use the volunteer as a friend of the court, who makes recommendations but does not have the legal clout of a Guardian ad Litem. A friend of the court is someone who follows a case but cannot insist that the court’s orders are followed.

Once in a while a child might require one advocate to represent his wishes and another to speak for his best interests. For instance, the care of a parent or facility may be suitable in every way, but the child has a strong aversion to it. That child has a right to have his position argued in court by an attorney so that a judge can make the final decision. On the other hand, both attorneys and advocates must guard against behaving like ventriloquists who pretend to be acting either in the child’s best interests or speaking for the child’s wishes, while really using the child to promote their own agendas.

The U.S. Advisory Board on Child Abuse and Neglect believes that children can become “partners in the pursuit of justice.” Who will speak for these children? More and more people must volunteer and take an active interest. Making certain every child in need has an advocate is the first step. With the recent high-profile children’s rights cases in the media, American law is on the cutting edge of children’s rights and most of the western world is watching to see what happens.

CHILDREN HAVE A RIGHT TO LIVE WITH THEIR “PSYCHOLOGICAL PARENT”

The time has come to establish who a child’s psychological parent is and what constitutes a person’s true family. A family begins with a biological basis but flourishes with emotional bonds. The members of a true family make serious attempts to love one another and meet one another’s needs. Yes, the custody, care, and nurturing of the children reside first with the biological parents, but children also are entitled to be protected from abuse, neglect, or exploitation by any adult, as well as to have the right to act independently of parental control under certain selected circumstances. The latter becomes controversial when a fourteen-year-old girl wants an abortion against her parents’ wishes. Yet even those who disagree with a child’s right in this case might be sympathetic if that same girl wanted to defy the beliefs of her parents’ religion if they mandated the end of formal schooling at age fourteen, or side with a child whose parents tried to deny her lifesaving treatments because of their faith. Almost everyone would find some reason to agree that there are times when the manifest best interest of the child might differ from the parents’ wishes. One look at the tragic consequences to the children of the followers of David Koresh or Jim Jones demonstrates this point vividly.

The Florida Constitution declares: “All natural persons are equal before the law and have inalienable rights among which are the right to enjoy and defend life and liberty, to pursue happiness.” In order to protect those rights, then, children must be able to live in surroundings that do not violate their pursuit of happiness. Likewise, we cannot be biased against families simply because of limited economic circumstances or because their family does not function at optimum levels. There is a vast difference between the problems that poverty or misfortune inflict on a family and the sadistic discipline of overly strict parents or the neglect of totally inept caretakers. A genetic connection alone must not be an irrevocable license to allow brutal or incompetent parents to control a child.

Yes, the vast majority of families are much better than the state at raising children, but as Hillary Rodham Clinton wrote in “Children Under the Law,” “the state, representing the community of adults, has the responsibility to intervene in cases of severe emotional deprivation or psychological damage if it is likely that a child’s development will be substantially harmed by his continued presence in the family.” Just as a child must sometimes undergo the pain of surgery to be cured of a dreadful disease, sometimes it is essential to inflict the pain of separation and loss to have a healthy outcome.

In speaking with people about the plight of our youngest citizens and the need for more children’s rights, there is an immediate backlash that imagines that children who are represented independently from their parents will bring frivolous actions against them as a way to acquire more material possessions or to subvert the parents’ ability to discipline them. Protection of individual family values is touted as a reason to halt the interference of the state in family matters. We should, in fact, respect every family’s uniqueness as long as they make a strong attempt to give their children love, care, security, and try to meet their offspring’s essential needs for food and shelter and affection.

There is also the fear that the state will impose standards that do not permit a wide variety of parenting styles and family beliefs or that children will be removed from poor parents and handed over to wealthier ones. Part of the argument used by Gregory K.’s natural mother was that the foster family offered her son financial benefits she could not give him and that they were seducing him with their more affluent lifestyle. This ignores the fact that Gregory K.’s mother behaved irresponsibly for many years and that he had been languishing in foster care for thirty months with no hope of a permanent family on the horizon. For a few dollars she could have maintained some, if tenuous, contact with Gregory K. and could have made a more earnest attempt to keep him in her home.

Almost everyone concerned about families understands that under most circumstances a child will grow best in his own family, even in a very imperfect family. Rachael Kingsley, Gregory K.’s mother, complained that if some of the money used to keep Gregory in state custody had been given directly to her, she might have been able to care for him properly and would not have had to give him up in the first place. While experts could argue that case forever, it is clear that families in crisis would benefit from a different approach to protecting children at risk. Until recently, $2.3 billion a year was spent nationwide to maintain children in foster care, but only $274 million was allocated to try to keep families together. New legislation provides a $2.5 billion allocation for “family preservation” but does not clarify what constitutes a family. Blind adherence to any one policy must be avoided. Every family’s situation is different. Every case should use only one pure standard: what is in the best interest of that child.

When I was in court waiting for the Colby case to be called, I happened to hear the case of four-year-old Darryl. He limped into court. “Hiya!” he said to anyone who would listen, including the judge.

“Hi, Darryl,” came the response from the bench.

Testimony revealed that Darryl had a life-threatening medical condition. He was placed in foster care because his young, untrained, and poor mother had not yet been educated in how to give him the special care he needed, and she did not have a telephone to call for emergency help.

The fees for home visits by a nurse and the cost for a telephone installation were far less than the foster care expenses of this child, but HRS did not coordinate these services until the judge ordered them to do so. If the social workers had simply pulled together the services that his mother needed, Darryl might have been able to remain in his own home without a long, deleterious detour into foster care.

Foster care was meant to be a temporary solution between solving a family’s problem or changing the child’s home for good. In many cases foster care has become the only way of life a child ever knows. While children often need to be removed from their homes for good reasons, foster care rarely is the final solution. In retrospect, sometimes even a rotten family turns out to have been better than no family at all. When Cory, who insisted that he was never abused by his father, went into foster care against his will for his own “protection,” he suffered an emotional deprivation that was never dealt with. The moment Cory was taken from his home, the state became the perpetrator of further damage. Cory not only lost his abusive father but also lost his sister and brother, his grandfather, his teachers at school, his neighborhood friends, his bedroom, his toys, the smell of orange blossoms in the groves, the bumps on the dirt road that led to his house. Cory didn’t understand the state of suspended animation he was supposed to live in until the courts tried his father. Nor could he comprehend why he was treated punitively at the MacDougal home. (It is extremely common for these children—who are actually the victims—to be punished more than the perpetrators. This certainly was the case with all the Stevenson children, as it is with battered women and other casualties of violence in our twisted society.) But as bad as the MacDougal home was, Cory was so afraid of another separation, he did not instigate that change on his own.

Instead of thinking that the only thing we can do is to remove the child from a hazardous condition, we need to remove the hazard from the child. If, despite the incest allegations leveled at his father, the family had been given some psychological assistance, Cory might have been able at least to have continued living with his grandfather. Initially the family would have had to have had intensive counseling and ongoing supervision. Cory would have had to know he had a way out if he was in an abusive circumstance. He would also have had to decide whether or not he was going to visit his brother and sister. That situation was complex and there were no programs in place or counseling funds available. The only officially responsible choice was to remove him precipitously from his family. Even so, every effort should have been made to maintain consistency in Cory’s life. He could have been placed in a foster home with Alicia, and if the foster parents had been trained and a support system had been in place, they might even have been able to have cared for Rich as well. The curative value of reuniting these siblings might have been immeasurable. Maybe Rich would not have had to try to create his own little family by marrying Janet so early. Alicia’s brothers may have offered her the love and security she only found during sexual encounters with boys.

A CHILD’S SENSE OF TIME MUST BE HEEDED

Another problem with family preservation initiatives is that a high percentage of children reenter foster care after failed attempts at reunification with the family. Fewer than ten percent are ever adopted. And sometimes even adoptions put together with the best intentions fail. How can this be remedied? If we allow the system to move at its usual sluggish pace, the family and child become weaker and weaker. Families in trouble cannot begin to deal with the power differential between them and the authorities and eventually give up unless they get tremendous support. Advocates can make certain that both sides are communicating and can also point to the hands of the clock and issue warnings when either the parent or the social service agency is not meeting the child’s needs in a timely fashion. Once a child is in a foster home, there is a tendency to compare the comfort and control of that environment with the risk of allowing the child back home. As long as Cory was in foster care—no matter how badly he was doing—the caseworkers could believe they were protecting him from his “monstrous” father, and they could deny the harm that he was suffering by feeling so unattached. The system never dealt with his grief and loss because the professionals were utterly—and blindly—convinced they were doing him a favor.

Few discuss the fact that children grieve when they lose their primary attachment figure, even if that person was an abusive parent. Grieving children do not behave normally. While some seem to adjust well, eventually their behavior deteriorates. Some may actually act sad or talk about the loss, but most hide it with behaviors. To cover the pain some keep as active as possible and are labeled hyperactive. Others become defiant or negative. Many perform poorly in school. Julie Colby was so consumed with her problems that she found it impossible to focus on her academic work and failed a grade. When she had a solid year at the Slaters, she did very well, but even then the uncertainty of her position gave her depressive periods when she ignored homework and misbehaved.