Interfering with Family Integrity
The goal of a dependency case is almost always reunification of the child with his or her parents. Services and treatment are to be provided so that reunification can happen quickly, understanding that children do best with their parents. Yet, despite these clear goals, the VGAL program was found to have consistently disrespected parents and undermined the goals of reunification, particularly for low-income parents.
For example, some VGALs were found to have created fake www.match.com dating profiles to lure parents who were working toward reunification with their children in order to gather evidence that would be used against them. Fake dating profiles were designed and calculated to catfish parents based on targeted lies such as identical religious affiliation or specifically desiring women with children. Information gathered in these communications was then used by the VGALs to paint a picture of the parents as somehow unfit. Aside from their blatant dishonesty, these practices also violated Snohomish County rules regarding the private use of email addresses as well as treating all parties fairly and with respect.
Disparate treatment of low-income and indigent parents by the VGAL program has also been an ongoing issue our office has directly experienced. To deter parents' attorneys from gaining access to its files and records, the VGAL program implemented a policy of charging attorneys who represented indigent parents a per page fee for obtaining discovery files. This would occur only after defense attorneys attended a discovery conference and made a subsequent appointment to view discovery, which would be shown only if VGAL staff was present to observe and record what pages were requested.
In contrast, private attorneys representing parents who made too much money to qualify for court-appointed attorneys were provided discovery and records on a CD for free to view at a time and place of their convenience. These disparate accommodations resulted in significant disadvantages to low-income parents involved in the system and came at a time when the VGAL program claimed it lacked the resources to produce discovery electronically at all.
Based on the evidence outlined above, Judge Farris found that the Snohomish County VGAL program engaged in abusive litigation tactics, including "masking misconduct, fabricating facts, and reaping revenge." Id. The VGAL program withheld evidence from opposing counsel, deleted evidence of misconduct, shuffled discovery out of order, and conducted a document dump of 8,000 pages specifically designed to secure and secrete misconduct. The court explained in its ruling:
The document dump is a well-known abusive litigation tactic, often used in large civil litigation involving corporations or government entities. Document dump is defined as the act of responding to a request for information with a large quantity of data that is transferred in an unfriendly and hostile manner. It may be used to hide unfavorable evidence by mingling responsive documents with a large number of nonresponsive documents. Document dumps often produce more information than requested, but in a nonsearchable, unorganized or unlabeled format. The producer then argues it's done the recipient a favor by producing more than requested.
Id. at 75–76.
The VGAL misconduct, as well as the subsequent cover-up of widespread misconduct by the VGAL attorney and the head of the VGAL program, was not designed or intended to help children in any way. Instead, the court found, "[n]ot one of these fabrications did anything to promote the interests of a child. These were not well-intentioned lies. Without exception, their sole purpose was to hide the misconduct of the liar, and that was done at the expense of this child." Id. at 105.
As this case proceeded through months of contested litigation, an underlying issue came to light: The VGAL program has been operating since 1979, yet none of the VGAL program's volunteers, program coordinators, or staff had ever received training or even been made aware of the Guardian Ad Litem Rules set by the Washington State Supreme Court. This would be equivalent to a fire department claiming it did not know fire codes existed, or a senior Internal Revenue Service auditor claiming never to have heard of a tax code. This epic failure has led to catastrophic ethical and legal violations by the VGAL program on an unprecedented scale.
The most recent Superior Court findings regarding the Snohomish County VGAL program, outlined above, highlight the desperate need for effective, confidential, and ethical representation of Washington's children. Washington State is by far one of the worst states in the entire country when it comes to protecting the rights of children entering into state care. A National Report Card on Legal Representation for Abused & Neglected Children found Washington State to be ranked at the bottom of the country with a grade of F when it comes to providing legal representation to help children in dependency matters.
In 2015, there were 8,400 children in out-of-home care in Washington State. Partners for Our Children, Child Welfare Data at a Glance. One study found that two-thirds of King County youth referred for offender matters in 2006 had some form of Children Administration involvement. It also found that children in foster care had a graduation rate of 41.5 percent, the lowest graduation rate of any tracked group, including homeless youth.
Washington State Office of State Superintendent of Public Instruction, Graduation and Dropout Statistics Annual Report (Apr. 2015). That means that, in Washington State, a child living out on the streets has a better chance of finishing high school than a child in foster care.
The removal of a child from a family is a very serious action that must be taken only when the child is truly at risk. Once in care, every effort must be made to minimize time in foster care and work toward reunification. Children in foster care risk trauma that comes from removal from family, but they also risk further abuse. Over the past eight years, the Washington State Department of Social and Health Services (DSHS) has been hit with scores of lawsuits on behalf of children who were placed in foster care, paying out $166 million dollars in personal injury claims for failing to protect those children. Will Drabold, "DSHS Employees Rarely Pay a Price for Failing to Protect Foster Children," Seattle Times, Aug. 18, 2015. Many of the most severely injured while in state care were children who were tortured, starved, or raped, while others died. These numbers fail to take into account the personal cost on the victims as well as the suffering of families who must deal with the pain of knowing this abuse occurred while children were placed out of home.
Advocating for the best interest of children in a dependency case requires vigilance and training in maintaining the confidentiality of the families that VGALs are charged with serving and guarding against bias, prejudice, and burnout. In Washington State, it currently takes 300 hours of training to be certified to massage a horse or other large animal (Washington State Dep't of Health, Animal Massage Certification Requirements), yet it takes less than 24 hours of training for a volunteer to walk in off the street and recommend that a child never see his or her parent again.
Imagine what would happen if jury duty was not mandatory for citizens but a voluntary process instead. What demographic of our community would have the time and the interest to be a permanent volunteer juror? Would that demographic be in any way representative of the diversity of the community? Imagine that permanent juror having a seat at the table after a few hours of training to wield massive influence over your case as well as your personal confidential information.
Studies have shown that when attorneys for children are appointed at that initial 72-hour emergency shelter care hearing, cases wrap up sooner and with more successful outcomes. The 2015 Impact Report by Legal Counsel for Youth and Children indicated that on the issue of placement, children who are appointed counsel for the first hearing are more likely than children without counsel to be placed with parents, relatives, or other caring adults they know, throughout their dependency cases. On the issue of permanency, children with attorneys from the first hearing onward are more likely to remain with or successfully return to their parents than children without counsel at the start. Yet, the Children and Youth Advocacy Clinic at the University of Washington School of Law found in its 2016 status report, Defending Our Children, that despite a federal law requiring that an advocate be appointed for the child in all proceedings, 23 percent of children in Washington had no appointed advocate in the court hearings that control their lives. This failure to provide counsel effectively silences the children whom the court needs to hear from the most.
Perhaps the only advantage of Washington being near last place nationwide is that we know what the effective solutions are and what steps need to be taken immediately. No long-term studies need to be done. Determining the best interest of children must be done on a case-by case basis and cannot be circumvented through shortcuts of bias and prejudice. Training for volunteers regarding cultural issues, racial bias, confirmatory bias, prejudice, domestic violence issues, incarceration of parents, therapeutic approaches, and effective child-centered representation is woefully inadequate though it should be mandatory for anyone to do this work.
Not all children can be returned to their parents when their health or safety cannot be secured. However, when children absolutely must be separated from their parents through state intervention, that process can occur either with care and thoughtfulness or with unnecessary cruelty. The termination of parent-child relationships must be done in a transparent, legal, and ethical way; yet, now more than ever, it must also occur in a therapeutic manner. We have an obligation to those hardest hit by our system's failings to rebuild our child welfare system with compassion, using the voices of the vulnerable and abused to inform our work.
It is easier to build strong children than it is to fix broken men.