Not Very Satisfying

Not very satisfying 011911
News, analysis and opinion

County Council Jim Curtis delivered as advertised at Tuesday’s Sierra County Board of Supervisor’s meeting: he stated the limitations of the Board in overseeing CWS and welfare cases.

He described the limitations largely as we said he would in a Sunday ARTICLE: confidentiality; requirements of qualifications; authority granted the Director of Health and Human Services; distance between the Board and the department.  Mostly, he handed them an long opinion from an Attorney General.

He did not say “how to”.

Indeed, when Mr. Curtis was finished with his explanation Supervisor Goiceochea stated what some observers in the room expressed between themselves:  “I don’t mean to hurt the attorney general’s feelings,” he said, “but this is no value at all.”
He went on to explain that the Board is responsible for the department, both to the people and in terms of liability, yet they have no particular authority over the department under Curtis’s description.  

Here is where our analysis finds Mr. Curtis’ presentation lacking.

First of all, he did not approach the matter with a will to find a solution.  His answers were simply “stock”.

The main of that opinion dealt with “confidentiality”.  The law on confidentiality is extremely convoluted, with some kinds of confidential information being available to some authorities, and others restricted to different authorities.  A great example is mental health information, which is extremely confidential.  
However, most, though not all, information can be released if the citizen whose information it is, allows it.  Much of the law to which Mr. Curtis referred actually discussed the importance of preventing the board, collectively or individually, from finding personal information about citizens which the citizens want kept secret.    As we’ve mentioned in many articles, Child Welfare Services exists in a special legal fiction in which the government is intervening on behalf the child, and therefore as the acting parent chooses to keep the information confidential.  

The problem for the discussion is that this is not the subject of concern.   The Board is not acting on a case.  The Board is discussing allegations against the department, and also community concerns about the department which precede the allegations.

Mr. Curtis said that when there was a question in a case normally the Director would review the case for the Board.
In truth, it is not likely this director or many directors actually know CWS well enough to review a case adequately.  Typically such a case would be assigned to a social work supervisor who has never been involved with the case and is not supervising the social worker in question.  That person would forward their analysis to the Director, who reports to the board.

It is a significant problem that in this instance, all those people are implicated in the claims against the county.  Not that it would make too much difference; typically such “reviews” don’t reveal wrong doing, and when they do it is typically quickly handled in the department, as in “that person doesn’t work in this department, they’ve transferred.”  

Mr. Goicoechea stated the obvious: there are no checks and balances.

Oh, but there are, Dr. Carol Roberts insisted, everything has to go through the court.  There are many hearings, the judge oversees the agency.

Mr. Curtis agreed, “these aren’t kangaroo courts,” he said, and he explained that sometimes there were as many as four or six attorneys in the room.

The Prospect has, in past articles, explained the problems with this rationale.  Parents are often poor, and if they don’t believe they’ve done anything wrong, they get a public defender.  No need to go farther there.
The children have attorneys, but Mr. Curtis failed to explain to the Board that the attorneys for the children may not advocate for return home, or anything else the department has decided, and the judge agreed, is not in the interest of the child.  The real job of the kids’ attorney is to try to find information, and to explain to the kid what’s happened in court.  In short, unless a parent pays a great attorney and the expert witnesses needed, they are unlikely to get much justice.  It is true that there is an evidentiary hearing, and parents can bring in character witnesses, if they can get them to come to court, but the deck is heavily loaded in favor of the house.  The average Sierra County family doesn’t have the connections or the cash to bring these people to court.

Finally, the lofty work of all these lawyers and judges still relies on data from the lowest paid person in the food chain.  

Mr. Goicoechea stated the problem: “The number of lawyers doesn’t give solace.” Having more lawyers in the room isn’t going to reassure anyone.  

The system is structurally as Dr. Roberts and Council Curtis describe; in actual practice the function is very different.  In practice, the judge is likely to have the same SENSITIVITY as the department.  Further, the judge rarely investigates anything, and typically ends up going with the preponderance of evidence, and we mean “preponderance” by physical weight, not by importance.  The county has a huge big folder; the parent doesn’t have much.  In the end, the great majority of times, the judge will not modify the case plan requirements any if at all.  It isn't the judge's role to plan for the family, only to ensure that the proceedings follow a protocol, and that the agency has presented just enough evidence to meet the requirement of law
In any case, the judge is not truly a balance because the judge serves the law and not the client.  Child welfare law is, at best, ephemeral, and the amount of proof needed is slight, compared to criminal court.

In addition, all four, or six, or ten lawyers in the room are relying on the same source for their information; most of them, from county council to the kid’s attorney to the public defender are there for a very narrow range of participation.  

Please note: we are not suggesting that the people involved are slackards and don’t do their job properly, though sometimes that is the case.  Instead, we’re saying the participants speak the same language about the family, practice the same kinds of egregious “abundance of caution” and most of all not one of the participants there wants a kid to get hurt or killed after they let them go.  Sure, sure, we’re all worried about the kid, but mostly we’re worried about our reputation and our jobs.  It’s the “60 minutes” effect which no social worker, nor attorney, and especially not a judge wants hanging on them.  That’s actually an abundance of “cover your ass”.   And, next in line behind cover your ass is cover the ass of the people you work with and rely on, and of the agency.
The effect of this common culture is that there really is no true accountability.  

Supervisor Goicoechea continued to question how the Board, which bears the ultimate responsibility, is supposed to over see the department?  

Mr. Curtis simply could not tell him.

Some information was available in the packet Mr. Curtis handed out:

Section 10801 provides…The county director shall at all times be under the general direction and supervision of the board of supervisors, unless otherwise provided by county charter.

It was suggested that the Board might simply not accept money from the state, and Mr. Curtis stated that they must have a child welfare services.

CAL. WIC. CODE § 16502 : California Code - Section 16502
The child welfare services authorized by this chapter shall be established in any county or combination of counties when a plan which includes financing of such services has been certified by the department. Such certified plan of child welfare services shall then be operated in accordance with standards and regulations established by the department, subject to all the provisions of this code relating to the supervision of public social services by the department.

Unfortunately, he did not say that it doesn’t have to have very many staff.

As the Prospect has reported in other articles too numerous to mention, there are constraints on the kind of service the County offers, and indeed, the county can be sued by non-profits from other states on behalf of the children of the county in some instances (the requirement of “standing” doesn’t seem to be an issue).  The statistics from Sierra County are reviewed at the state for such things as “subsequent abuse or neglect.”  If the county has too few people to respond to allegations, and a child is abused or neglected a second time, the county might be liable.  Reducing funds and restricting staff might have such repercussions.  However, skilled staff can use differential response to reduce the number of investigations and decrease the statistical likelihood of two reports.  There are other methods of “correcting” the data the state receives, and far from unethical or illegal, this is the method most counties use to control their data.

While Mr. Curtis explained why the Board “can’t do” he failed to explain how they were to respond to the liability.

The county has to address their liability when there are criminal allegations against director level staff.  This is not an instance of interceding in a case, this is an instance of addressing allegations of criminal behavior by an employee. At this point, the Board needed to know the protocol for removing such staff from administration until an investigation can be completed, or as in this instance, a settlement is reached or the court makes a ruling.  Mr. Curtis should have simply referred the Board to an attorney with that specialty.  

The district attorney could investigate allegations of wrongdoing, but the DA requires the proof of a crime.  The board, like CWS itself, doesn’t require that level of proof to act responsibly.

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