Seeking Solutions for County’s Strained Foster Care System

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The girl was only 18 months old when she was placed in her first foster home, a hoped-for respite from a dysfunctional Orange County family.

Unfortunately, the placement failed, as did many, many more. By 16, she had been in and out of 57 foster homes.

She was among the more than half of the county’s approximately 2,800 foster children — products of broken homes and often sufferers of sexual or physical abuse, neglect or abandonment — who need special education services along with behavioral care for a range of emotional and mental disorders.

The number of foster home placements in her case is extreme. But authorities and mental health experts across the region say it is not uncommon for youths with similar issues to cycle through foster homes a dozen or more times, before they either leave the system as adults or stabilize.

“Many of these kids feel very little control over what happens to them,” said Michael Riley, a psychologist who directs the county’s Social Services Agency, which administers the foster care program. “They feel as if they are waiting for the other shoe to drop. The only control they have is to force a placement blow out.”

There is a multi-pronged system designed to place them in safe environments, possibly establish adoptions and ensure free and appropriate education and behavioral services. But that system is strained.

In recent years, the region’s network of government agencies, nongovernment organizations and volunteers has done a better job of helping foster children with special needs. Yet significant challenges remain as costs continue to escalate for treatment of those with the most complex circumstances.

“The overall system is better,” Patricia Cromer, a Solana Beach private attorney who at one point represented the youth who had 57 placements and recently became an adult and is living with relatives. “But it is not fixed, as evident by calls I get from social workers about troubling cases.”

Such numerous placements are “a tragedy, hideous,” said Jill Duerr Berrick, leader of the Child Welfare Case Management System, a UC Berkeley project that includes data on foster children statewide. And she said that while uncommon, they do reflect systemic problems.

Who Is the Parent?

During the fiscal year ending in June, 38 Orange County foster children had five or more placements, 27 had four or more and 52 had three or more, according to the case management system.

The state, mental health agencies and school systems find themselves in battles over who is the “parent” and therefore responsible for the cost of all the services these children need. And a good number of these battles wind up in court.

There now are four lawsuits from Orange County involving such cases that have reached the U.S. 9th Circuit Court of Appeals in San Francisco. They all involve issues that arose in the last five years.

There was no dispute over the four youths qualifying for special education services under the federal Individuals with Disabilities Education Act, records show. And in each case, there was no argument over whether the youths should be placed in residential treatment centers, some of which charge $100,000 a year.

The county Department of Education already has paid for the special services for each of the four but with the proviso it could be reimbursed when the legal dustup is settled on final financial responsibilities.

The state is ultimately responsible for the costs, but the parent’s county or school district could wind up paying the bill.

The first of the four cases seeks to determine whether a court-appointed guardian meets the definition of parent when applying laws for special education. The outcome would determine which agency is responsible for the cost. The child’s guardian lived within the Orange Unified School District.

In past years, the state paid an average of about $530 a month to Orange County foster parents who took in a child. A lawsuit last July forced the state to increase the average payment to $750 a month.

The higher amount may enlarge the number of foster parents willing to help, said Robert C. Fellmeth, director of the Children’s Advocacy Institute in San Diego, which filed the lawsuit.

But Douglas Hatchimonji, presiding Juvenile Court judge in Orange County since January, said he didn’t see money as a major motivation for foster parents to take on their tremendous responsibilities. “The heart of a foster parent is not an easy subject to generalize,” he said.

Many families aren’t informed on the availability and methods of obtaining the educational or behavioral services. Even when they do become aware of the services they deserve, they may have to fight school districts that don’t want to shoulder the costs.

Under the federal law, there are specific time guidelines for families seeking the special education services. This can be complicated by youths changing foster parents, school districts and therapists.

Too Many Kids, Not Enough Help

Orange County maintains a $2-million contract with a private law firm to serve the function as “minors counsel” for many children under the jurisdiction of the Juvenile Court. But that firm has eight attorneys for about 4,000 cases, including foster children.

Caseloads this high — an average of 500 cases per attorney — aren’t uncommon in California’s high-population counties. But they are improper, Fellmeth argues. His agency filed a lawsuit in Sacramento two years ago to rectify the issue, which hasn’t been settled yet.

Against such a backdrop, a now-retired presiding judge of the Juvenile court, Robert Hutson, more than a decade ago brought together various Orange County agencies to deal with the complexities of special education foster kids. The result included a panel of six private special-education attorneys to represent foster children in particularly challenging cases and be reimbursed by Juvenile Court.

But a dispute arose in 2001 after two panel attorneys won special services for a foster child from the Capistrano Unified School District. The district then sued the child and his court-appointed attorneys after an administrative process ruled the district had to pay to place the youth in an out-of-state residential treatment center. The district objected to the court appointing counsel for the foster child.

“The district sued because we won,” said Cromer, a panel attorney who was a defendant.

The attorney panel was abolished in the aftermath of the lawsuit, which reached the 4th District Court of Appeal. County records show the case cost at least $785,000.

The lawsuit wasted taxpayer money and undermined legal assistance for needy foster children, Cromer said. A school district spokesman said no one was familiar enough with the case to comment.

About a year ago Hatchimonji launched a drive to establish a new network of lawyers to represent the children. In September 2010, the UC Irvine law school held a training session for 70 lawyers who wished to provide pro bono, that is, free representation.

But since then, only eight foster children have been referred, with seven receiving legal assistance, said Kirsten Kreymann, pro bono director for the Public Law Center, a nonprofit organization in Santa Ana matching attorneys to referred foster children.

“We had envisioned more cases, and we have the capacity to represent them,” Kreymann said.

Ronald D. Wenkart, the county Department of Education’s general counsel, attributes the low referral number to a protocol for resolving disputes without litigation.

In the past, he said, “Children were falling through the cracks, moving home to home. People didn’t know where they were. The whole process is working much better now, but I won’t say it is perfect.”

Hatchimonji said that for a Juvenile Court judge,  these foster children can be the toughest assignments, with successful outcomes bringing the most joy for all involved.

“Every child is a puzzle,” he said. “The judge has to try to put together the puzzle without the picture on the box.”

Rex Dalton is a San Diego-based journalist who has worked for the San Diego Union-Tribune and the journal Nature. You can reach him directly at rexdalton@aol.com.

 

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