The Current Structure of the Child Welfare System in California Creates A “Damned if you do, Damned if you Don’t” System, Unnecessarily Inflicting Trauma on Those Involved

As mentioned in my introductory post, the focus of my research will be the discretion granted to government agents to make determinations about when a parent’s substance use disorder constitutes cause for removal of children. I would also like to address the discretion granted to make determinations about placement of those children. This post will outline and personify the issue in preparation for my next post which will dissect policy, statutes, and current procedure to identify the places where discretion leaves the current system subject to inconsistency.

I. Background and Context of the Problem

            The right to raise your children without government interference is fundamental. Meyer v. Nebraska, 262 U.S. 390, 403 (1923). However, in critical situations the government has long reserved a right to take action to protect the interests of children in our society. One of these critical situations is when the parent’s substance use disorder affects their ability to care for the child. However, determining when the disorder actually constitutes neglect is largely up to the discretion of the agencies involved.

            Society has long treated addiction as a personality defect; however, things are starting to shift. The U.S. Surgeon General released a report in 2016 which outlined the benefit of shifting to a public health approach when viewing substance use disorders. Even the terminology which is used to discuss the population affected by substance use has changed – the recommended description is no longer “drug addicts.” It is now, “individuals with substance use disorders.” The language used may seem like mere minutia, but it symbolizes a move away from faulting the individual for the substance use disorder that they have developed. Trauma accumulated from adverse childhood experiences that carry into adulthood often drive parents to find solace in the “escape” provided by substances. Many parents who have substance use disorders have no desire to hurt their children and they would never allow their children to suffer but for the disease that has a hold on them.

            The drug epidemic has dramatically increased the number of children involved in the child welfare system. Unfortunately, government agencies aiming to protect children in California (and across the country) have not shifted to a more trauma-informed, rehabilitation focused approach or simply do not have the resources to do so. This takes us to the heart of the problem: how does the government effectively decide when substance use disorders deem a parent unfit? Does a substance use disorder automatically render a parent unfit to care for their child?

            Currently, it seems that protocol is more or less very lax and leaves a lot of discretion for government agencies to decide when actual intervention is necessary, when removal is essential, and when overrides are acceptable. Overrides are when a social worker or decision maker in the welfare agency decides to deviate from what would be “proper protocol.” In almost all offices overrides are perfectly fine even if the override is rationalized after the fact. Policy and discretionary overrides allow a social worker to factor the outlined criteria against his or her own judgment and knowledge of the case. (Please see pp. 151-153.) The possibility of overrides is present throughout the entire process, from removal all the way until reunification. This often results in an inconsistent application of the law on a case-by-case basis and can inflict unnecessary trauma on the children and the parents involved with little accountability.

            California Welfare and Institutions Code § 300 dictates removal, and California Welfare and Institutions Code § 309 creates guidelines for placement and asserts that a child who is removed should at least be placed with a relative unless there are no reasonable means to do so. Both of these statutes and existing policy give county agencies substantial discretion to make these critical determinations. In my next post I will thoroughly break down California WIC §§ 300 and 309.

            II. Personification of the Problem

           A lawyer once told me a story about a family that highlighted the inconsistency of application of the law when it comes to removal of children for substance use disorders. Consider a family with two mothers who are cousins by marriage – one mother was raised in a stable household and the other mother was raised in a tumultuous environment with heavy substance use.

Continue reading “The Current Structure of the Child Welfare System in California Creates A “Damned if you do, Damned if you Don’t” System, Unnecessarily Inflicting Trauma on Those Involved”
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A Historical Context to the Indian Child Welfare Act

When Congress enacted the Indian Child Welfare Act, 25 U.S.C. § 1901-63, it was in response to an extraordinary number of Indian—that is, Native American—children who were removed from their homes and placed in homes that did not reflect their heritage. The National Indian Child Welfare Association estimates that in 1978, when ICWA was enacted, 85 percent of the Native American children taken out of their homes were placed in non-Native homes—even when relatives were able and willing to care for them—and even today, 56 percent of Native children are adopted outside of their homes and communities. (A more in-depth introduction can be found here.) The question remains—for some at least—whether it is necessary even today.

Terminology and Cultural Sensitivity

As a threshold issue, I would like to address the terminology I will be using. Historically, Native Americans in laws and policy—both federal and state—have been referred to as Indian and Indian tribes. Subsequently, in 2016, President Barack Obama signed a bill that changed all references to American Indian to Native Americans in federal law. ICWA, however, is still referred to as the “Indian Child Welfare Act”—using old terminology—in both the statute and in secondary articles and references. As such, when I talk about the statute, I will continue to refer to it as ICWA, using terminology that may be outdated.

Furthermore, while the United States government has classified Native Americans as a separate group—and certainly, the people and tribes who were here before European colonizers are distinct from all other racial and ethnic groups in the United States—it would be inaccurate to classify Native Americans as one racial or ethnic group. ICWA itself includes Indian children from federally recognized tribes (there are currently 573, and only these are eligible for those benefits under federal and state law) and some from Alaskan Native villages, which are considered a separate but similar group. Without getting too far down an unrelated path, the “Native American identity” is one that is far from singular.

Persons who would fit within a Native American or Indian identity by the United States government have chosen to identify themselves with a variety of terms, including First Nations, Native Americans, or their specific tribe itself. However, in order to prevent confusion, and, because this is meant to be a law and policy post, I will use the term Native American to refer to any child who fits within the definition of a child to whom ICWA can apply, and to those tribes that are federally recognized. (Those definitions can be found here, at 25 U.S.C. 1903(3) to (8).)

A Historical Backdrop

The United States certainly has a history of discrimination against Native Americans, and it is not limited to just the foster care system. Native American tribes have been systemically relegated to a second-class position, killed off, and had their lands taken away from them.

Continue reading “A Historical Context to the Indian Child Welfare Act”

Stage 2 of 4: The Traumatic Effect on Educational Outcomes of Youth in Foster Care

A few weeks back, I wrote about how trauma affects learning. I explored the definition of trauma, the way trauma can have a physical impact on our brains, common behaviors in children that experience trauma, and finally the way that trauma impacts a youth’s ability to learn.

The post from a few weeks back served as Stage 1 of my 4-Stage research journey. As you can see below, I will now be focusing on Stage 2. 

Continue reading “Stage 2 of 4: The Traumatic Effect on Educational Outcomes of Youth in Foster Care”

Over-prescription for Youth in Foster Care: Why and How are these Medications being used?

Youth in Foster Care are one of the most emotionally and mentally vulnerable populations in America. Only 18-22% of the general population living in the United States experience a significant mental health issue, but children in foster care experience serious mental health issues at a rate of up to 80%. These youth experience the same mental health issues most often seen in adults who have been in military combat situations. Foster youth can be diagnosed with mental health issues such as: post-traumatic stress disorder (PTSD), major depressive episode, panic disorder, generalized anxiety disorder, drug dependence, and even eating disorders. These mental disorders are the result of trauma that foster children experience. I will not be going into the various forms of trauma or all of the different traumatic experiences one might experience in foster care because that is outside the scope of my topic (If you’d like to learn more see my colleague’s post).  

These disorders are normally treated with a combination of different forms of therapy, family support, and medication in the most severe cases. But youth in foster care lack familial support. In addition, resources are limited for foster children to receive needed therapy so most receive little regular therapy and some only get it in emergency circumstances. This leads to health care providers and social workers relying on psychotropic medication (medications that are prescribed by psychiatrists to affect the brain and nervous system as a treatment for mental illness) as the most common form of treating these disorders. This is not to say that psychotropic medications should never be prescribed. These medications have been found to be the most effective to reduce symptoms of mental disorders and prevent relapses. But they are not meant as a quick and permanent fix; they are meant to be paired with therapy, support groups, family support etc. and then later discontinued. The current methods and rate of use of these medications for youth in foster care is improper.

Foster children are prescribed psychotropic medication at a rate 2.7 to 4.5 times higher than children not in foster care. They’re prescribed these medications at a rate of 21-39% compared to adults with the same diagnoses who are prescribed at a rate of 5-10%. There is a systematic over-prescription of psychotropic medication for children. By over-prescription, I mean that the rate that psychotropic medication is being prescribed to children is increasing steadily, but scientific data shows that there are very limited circumstances where these medications should be prescribed.

Not only is there a problem from these medications being over-prescribed, there is also very little known about the long-term effects these medications will have on children. The main reason for this is that the United States Food and Drug Administration (FDA) has strict regulations forbidding most drug testing with children. As a result, we have a lot of data on how these medications affect adults, but little to no information on how those same medications affect children and adolescents. These medications may not work the way they should and may have unexpected side effects, such as unexpected drug interactions or toxicity, because there have been no studies on the medications effect on minors.

Even if we understood all of the side effects, these medications are being prescribed outside of the narrow range of situations that doctors and data support that they should be. To clarify, this means that children are being prescribed these medications in situations that doctors would not prescribe for children or even adults in the general population. This has led to recent increased scrutiny. The issue first came to national attention in 2011, when the Government Accountability Office (GAO) testified before Congress that there was a desperate need for more oversight over the prescription of psychotropic medication for children in foster care. The GAO identified several practices that were directly putting foster children at risk, including giving multiple prescriptions for multiple medications in short periods of time. This can lead to serious health risks for children taking multiple medications such as risk of overdose, compounded side effects, and serious unexpected drug interactions.

The scrutiny of this issue has been particularly high in California, where we have one of the largest state populations of youth in foster care. In 2016, the results of a California state audit were publicized and they revealed a widespread failure of the state to ensure that foster children were receiving adequate mental health care. The main finding was evidence of a state-wide over-prescription and failure to oversee the prescription of psychotropic medications. The audit also found that foster children did not receive the recommended follow-up appointments or the complementary mental health care they needed. Some counties were even found to have failed to receive any form of required court or parental approval for foster children to take these medications. The report also made clear that the medications were being used as chemical restraints or sedatives, rather than being part of a treatment for the trauma foster children have experienced.

In response to the negative findings of the state audit, the California Senate Oversight Committee held a hearing to crack down on over-prescribing medications to children in foster care. The national scrutiny also sparked a seven-part investigative report by journalist Karen de Sá titled “Drugging Our Kids,” that fully thrust this issue into the public spotlight. A combination of Senate bills was put in place that required greater oversight and established the first routine monitoring of physicians who prescribe these types of medications. More importantly, it finally imposed consequences on prescribers not following these guidelines by creating an alert and review by the state medical board for doctors who prescribe outside of the standard limits.

While there is now a closer monitoring of the prescription of psychotropic medications, there are still several holes in the current mental health treatment of foster children. First, several counties do not have the money or resources needed to ensure that foster youth receive the level and frequency of mental health treatment they need. Second, there is very little known what the long-term impact is on foster youth taking these psychotropic medications over a long period of time. And most importantly, by conditioning foster children to use medication to deal with mental health issues, we’re creating substance dependence in foster youth and this is leading to life-long substance abuse and contact with the criminal justice system.

In the following posts, I will be discussing why this over-prescription is leading to substance abuse by youth in foster care. I will discuss how this substance use is leading to contact with the juvenile and adult justice systems. And lastly, I will be discussing how we might disrupt and hopefully end the cycle of substance abuse for youth in foster care.

The Tumultuous Journey Towards Placement Termination

Individuals involved in the foster care system often exit the system more traumatized than when they entered it. Children removed from their homes have often experienced trauma in their biological families and then go on to experience further trauma based on the nature of the foster system. Children being moved around to multiple homes, throughout their time in foster care, is one of the leading causes of system-induced trauma. Some youth in foster care have experienced as many as one hundred different placements. This phenomenon is called placement instability.

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The Crossroads Between Gangs, Family, and Foster Care

“Blood is thicker than water” – an age-old, celebrated motto emphasizing the idea that family should come before anyone and anything else. This mentality has been and continues to be especially popular amongst members of the adolescent community. However, in light of such, that prompts a question about kids in the foster care system who lack the traditional “family” that kids who aren’t in the system have: who’s their “family”? 

My name is Sam Persaud and I am currently a third-year law student at Santa Clara University School of Law. Ever since I can remember, I’ve dreamed of becoming a prosecutor one day, so naturally I began working as a law clerk for the San Francisco District Attorney’s Office the summer after my first year of law school. Since then, I’ve worked in several different units within the SFDA’s Office, including the Juvenile Division. There, I saw the collaborative and restorative nature of the justice system in its truest form. However, I also noticed that a vast number of the youth who ended up in the juvenile justice system were kids from the foster care system.

What I found particularly concerning was that many of these children had some sort of gang affiliation. This prompted me to ask whether gangs are offering kids something that the foster care system lacks? Or whether gangs are simply manipulating this “blood is thicker than water” ideology to lure kids into their criminal enterprises? To explain these questions, I will explore whether gangs act as a substitute family for kids who come from dysfunctional home situations. In other words, are gangs pseudo families for children who crave a sense of belonging, and do kids join gangs to counteract attachment deficits?

I will begin this process by first examining why “families” are so important to the positive development of youth, and what exactly “families” provide that makes young people feel a sense of fulfillment that in turn allows them to thrive. In this same post I will explain why most children involved in the foster care system lack what traditional families provide, and why that ultimately leads to gang affiliations.

I will then explore why is it that so many gangs have family references despite so many gang members coming from dysfunctional families? (For example, Nuestra Familia, Aryan Brotherhood, Black Guerilla Family, and so on.) Is this a means of compensating for the absence of biological or nuclear family ties by replacing that with criminal, gang-related ties? Essentially, are gangs a substitute family who provide a sense of belonging for its young member? 

I will then explore theories about how gangs may feel like the only “family” these children have, and how we may be able to fix this problem by making effective changes in the foster care system. In order to fix the problem, we must first understand it, so I am excited to explore this topic with you all! 

Stage 1 of 4: Childhood Trauma and Its Negative Impact on Education

I. Introduction

As I mentioned in my introductory blog post, in my former years as a teacher, I found myself frustrated at times with not knowing how to teach students that came to me with heavy educational and emotional needs. For example, take the following experience that I had as a teacher working with pre-teens:

I was preparing my class of 32 sixth graders for the next 50 minutes of class when Javier* walked in late with his hood on. He went to his desk and sat down quietly. I walked over to talk to him in hopes of catching him up on what he just missed. Within 5 seconds, I realized Javier had no interest in what I was saying. So, I told him I was going to give him a few minutes to wake up and that I’d be back. No more than 10 seconds after walking away, Javier was engaged in a conversation with the 3 other kids in his group. Their conversation had nothing to do with the assignment the rest of the class was working on, so I went over and quietly talked to him while his group members continued working. Javier grew irritated with me because I wasn’t going to allow him to just sit there and do nothing and distract other students from the task. I left Javier alone again thinking maybe he would calm down and get himself on task without me hovering over him. Next thing I know, Javier was cussing out another student. As per school policy, I had to write a discipline referral** for him and send him to the office with work to do (which I knew wasn’t going to get done). 

Continue reading “Stage 1 of 4: Childhood Trauma and Its Negative Impact on Education”