Denying foster youth a voice in court pepetuates injustice

Broken families, broken courts:
Big stakes, but little voice for kids
de Sá, Karen. Mercury News, Feb, 12, 2008.

The day an Alameda County Superior Court judge became his stand-in parent, 14-year-old Zairon Frazier felt more like a criminal than a survivor of child abuse.

His mother had whacked him with a belt. But inside Juvenile Dependency Court, it seemed like a different sort of punishment. A bank of attorneys argued his fate at a rapid clip.

"Obviously, whatever they were saying wasn't for my benefit," Zairon said. "I knew they were talking about me, but I didn't think anything I said or cared about mattered. If it was about me, why didn't they ask me?"

Youth advocates seeking to reform the long-overlooked dependency courts want answers to the same question. Too often, children removed from home following allegations of abuse and neglect are poorly served by lawyers paid to represent them.

Throughout California, attorneys do not include their clients in critical court proceedings foreshadowing their futures. The youths have little direct contact with their court-appointed lawyers before and after the hearings. And with the exception of dependency court in Los Angeles County, children rarely appear in court to express their views. When they do attend, like Zairon, they often leave discouraged.

The problem is compounded in Santa Clara County, one of two California counties where the district attorney's office represents children in dependency cases; other counties use public defenders or private attorneys. The local system leaves the children represented by lawyers who may be too adversarial toward the parents for their clients' own good. In interviews, judges and attorneys on all sides of local dependency cases said the tendency of the district attorney's office is to see too many parents as dangerous to their clients, a stance that works against the fundamental premise of dependency court - to reunify families whenever it is safe to do so.

The stakes for these kids are high. Judges and commissioners decide who will feed and clothe them - a relative, a stranger or institution staff. They decide where children will attend school, and whether they will ever see their families again after entering California's foster care system, the nation's largest, with 75,000 children.

Traditionally, having children attend hearings was considered inappropriate; the system was presumed able to find the best outcomes without subjecting them to the possibility of additional trauma in the courtroom. But that view has come under increasing skepticism, as research suggests children's presence leads to improvements in their lives.

"If we deny youth that opportunity to participate, we really have set up a court system that perpetuates injustice," said attorney Jennifer Rodriguez, a former foster youth. "Their lives are decided by strangers, in mere minutes."

For Rodriguez, that decision came at age 12, when a San Mateo County court ruled in her absence that she was a poor fit for a foster family. Over six years, Rodriguez shuffled between group homes, she said, "feeling so lonely I wanted to die."

Much about the regional courts has remained the same since 1994, when Rodriguez left the system. A reporter who won court approval to observe confidential proceedings in Santa Clara County for more than two weeks in 2007 observed children in only a fraction of hearings. On some days, the court raced through 20 cases or more without a single child present - even children clearly old enough to understand the process.

Hearings for children in long-term foster care often lasted no more than two minutes, even when reports revealed the children's lives were mired in terrible chaos. When young people did appear in court, their hearings were longer and more substantive; judges responded to children's concerns by seeking creative solutions.

On a typical spring day last year, the troublesome cases of absent youths came and went in a flash.

First was the case of a girl who had been denied any contact with her siblings. Her high school grades had plunged to D's and F's.

Then there was the fifth-grader so doped up on anti-psychotic medications he slept through class. Court reports showed the 11-year-old, grieving his father's death, used "marijuana and ecstasy as well as alcohol to numb his pain."

Later came the case of a suicidal 14-year-old girl, who continued to "mutilate her toes." The social worker's report issued a stern warning: "The child has a plan to harm herself and means to execute her plan."

While social workers, relatives and foster parents plan the lives of children outside the court, the hearings are a unique forum for judges to independently review the care of young people in state custody. "Any time a child comes into court, like any time a parent sees their kid at the end of the day, you have to be spending the time to do a temperature check," said Miriam Krinsky, a state courts consultant. "The more times you ask, the more you gain, especially with children in distress."

Nationwide efforts to reform the troubled foster care system increasingly focus on turning up the volume of 513,000 children's voices. The American Bar Association and the National Association of Counsel for Children are among groups urging that children be brought into court, even at young ages. Widely agreed-upon professional conduct codes for lawyers also call for maintaining personal contact with children wherever they move, basing legal strategy squarely around their wishes, and fighting for parent services and longer visits when appropriate.

"A living, breathing child," said Marvin Ventrell, of the children's lawyers group, "causes you to do your job."

Zairon Frazier
His life was being discussed, so he wanted to be there

Zairon Frazier, the Alameda County teen, could never find a ride to court. But something told him he should be there when the subject was his life. So he traveled by bus and BART, navigating strange cities from San Pablo to Oakland.

Over five years beginning in 2002, counselors and social workers advised him not to bother. And although he persisted, all too often, the court experience let him down. Zairon moved through eight East Bay shelters and group homes, three middle schools and three high schools.

At each hearing, Zairon never knew who would appear on his behalf. "They'd say: 'Hi, I'm your attorney. Here are your case notes, look them over.' And that was about it."

Meanwhile, Zairon's life cried out for zealous advocacy. At one county-licensed home, he had to wake up well before dawn to have time to get to his school; at another there was only enough hot water for one of six boys to shower. Zairon said he struggled to evade the drug use around him and longed for privacy. He ran away and slept in the streets. "It was so bad," he said, "I was crying every day."

Child welfare experts have found that children kept out of the decision-making are more likely to misbehave or run away from foster care entirely. And their presence offers judges insight into their physical well-being and interaction with parents.

The difference when the hearings included children was evident during the Mercury News' observation of dependency courtrooms.

In one case, a 17-year-old in San Francisco reappeared 16 months after running away. The teenager told Commissioner Catherine Lyons that social-worker reports that her mother read were undermining the girl's plan to return home.

Tossing back a tangle of magenta braids, the teen had a report of her own to deliver. "I got taken away from my mother and then someone sent a letter to my mother saying I didn't want to stay with my mother," she said, rising to her feet. "Why would I say something like that to my mother? That's just making things more difficult for me!"

The teen said she'd been on her own since entering foster care: "Group homes ain't no family."

And then the commissioner promised action. "I admire you for what you've done, what you've had to do," Lyons said. "If there's something in the report that's attributed to you that you didn't say or do, then we can take care of that."

And in a Santa Clara County courtroom, a boy told his attorney, Rob Lux, that he wanted to speak. The boy had been placed in foster care because his mother smoked marijuana after authorities already were concerned about her care.

"I just wanted to tell you, um . . . " Tears interrupted the testimony. "I really don't like what's going on and I just want to go back home," the boy said. "I didn't even get to spend Easter with my Mom, and that's my favorite holiday."

"I really, really appreciate your saying that to me," Judge Katherine Lucero responded, trimming the reunification target date from 180 days to 60. "And by law, I have to weigh that in my decision."

'So fragile'
Should kids be in court?
Some judges, lawyers say no

Nevertheless, there is a widespread attitude that the system functions fine without children. NOPE

A 2006 survey of 1,800 judges, attorneys and social workers surveyed in 40 states revealed that just 8 percent believe kids should always be present at their hearings. Only 28 percent said children should be present most of the time, reports the non-profit agency Home at Last.

"The attitude of the judges and minors' counsel in Northern California is that these children are so fragile and shouldn't be exposed to this," said Carole Greeley, a longtime dependency appeals attorney. "They're actively discouraging it." What about what they are already being exposed to at home, in foster care, on the streets and in group homes? Perhaps these judges and lawyers just don't want to know about it.

Santa Clara County children in foster care accompany their lawyers to court so infrequently, the local practice is to replace them with a Polaroid photograph. Deputy District Attorney Christine Hudson, who now carries a caseload of 428 clients, said the youths are told they can attend hearings but are not necessarily encouraged to come. Court can be boring for children, or traumatic, she said. She said some judges and commissioners even ask them to leave.

Many children say they have little or no contact with their attorneys outside court as well.

Estephanie, 20, spent four years in Santa Clara County group homes and shelters. She fled several times, falling into prostitution at age 15 while supposedly in state care.

When asked whether she had representation throughout her ordeal, Estephanie responded: "A lawyer? All I had was my social worker. No lawyer. I would have been knowing about that!"

Denise Marchu, former president of the local foster parent association who has cared for 120 children, said only two have been visited by attorneys, and that was to sign adoption papers. And in two group interviews with local foster youths, 10 of 15 teenagers said they had no idea who their lawyer was. One boy said he's seen his attorney three times in nine years. He doesn't know her name, he said. "But I know she's cute."

Emancipation hearing
'Would the judge care what was going to happen to me?'

As Zairon Frazier's 18th birthday approached, a significant court date loomed - the hearing curiously known as "the emancipation," or formal release from court supervision.

But there was a conflict. His last court date landed the same day as finals at Skyline High School. It could not be changed, a caller from the county informed Zairon.

That lost opportunity bothered him, compounding all the other losses of his life. "I wanted to hear what they were going to say about me at that last hearing. What would happen if I didn't have a job or I wasn't in school?" Zairon said. "I wanted to know, would the judge care what was going to happen to me after I got out of foster care?"

Postscript: On Oct. 26, 2007, two years after he left foster care, Zairon Frazier, now a student at Chabot College, was back in dependency court. After a reporter questioned the Alameda County Public Defender's Office about why Zairon's emancipation hearing was not rescheduled, officials decided belatedly to do exactly that.

Zairon, now 20, beamed through praise from Judge Rhonda Burgess, a photo session and a lunch in his honor. "It truly didn't have any legal implication," said his former public defender, Kathy Siegel, who was so bothered after learning of the missed hearing that she orchestrated the mock event. "But it had a lot of meaning to him, it really did. It was closure."

Contact: Karen de Sá at kdesa@mercurynews.com or (408) 920-5781.