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State government, in a way, is paying more attention to the foster care system than ever by signing mandates and protections for foster kids into law. But it’s ignored the other side of the equation: funding to make it all happen. In the meantime, caseloads for the attorneys who act as a last line of defense for foster kids are staggering, and children suffer as a result.
Carolyn Griesemer, a San Diego attorney who has represented children in the foster care system, already faced a busy week when she got an urgent call from girl she represented.
The teenager was scared. She told Griesemer she’d been raped the night before and that detectives wanted to speak with her about what happened. Afraid the detectives might suspect her of prostitution, she asked Griesemer if she would accompany her during the interview.
Griesemer is executive director of the newly formed Children’s Legal Services, the only agency that provides legal help to the 3,000 foster children living in San Diego County.
Appointed dependency attorneys represent foster kids’ interest in virtually every aspect of their lives. They help advocate for the best living arrangements if children have been removed from their homes because of abuse or neglect. They argue for children to remain at their schools of origin, instead of being bounced from school to school. They work to keep foster children from being over-medicated or criminalized for petty infractions.
Griesemer knew that responding to the call would mean she’d have to work all weekend to make up for it. She’d have to find a partner who could fill in for her at a court hearing. And she understood she’d have to put other, equally needy children she represented on hold.
“I didn’t have time. But how do you say no to that? It far outweighed anything else that was happening that day,” Griesemer said. “She needed a lawyer there. Not a volunteer. Not a social worker. A lawyer. And she has a lawyer through the system. It’s just a question of whether we have enough funding for lawyers to be able to lawyer.”
Across California, it’s a question attorneys like Griesemer are asking Gov. Jerry Brown with increasing urgency. For the past nine years, attorneys, judges and advocates within the foster care system have unsuccessfully lobbied the state for funds that would allow them to bring caseloads down to recommended levels.
State government, in a way, is paying more attention to the system than ever by signing mandates and protections for foster kids into law. But it’s ignored the other side of the equation: funding to make it all happen. In the meantime, caseloads are staggering and children suffer as a result.
Excessively high caseloads mean attorneys have less time to spend with the children they represent, and less time to investigate the facts of cases before they go to court or check in on children who’ve been placed in foster care.
Based on a 2008 study, the state Judicial Council, the policy-making body of California courts, recommended dependency attorneys ideally represent no more than 77 children per attorney, and later recommended a cap of 141 children per attorney.
Dependency attorneys in San Diego, however, have average caseloads of 210 children per attorney, said Griesemer. Attorneys in other counties – like Los Angeles and San Bernardino – routinely see caseloads around 350.
That’s part of what prompted the ACLU of Southern California to conclude two years ago that the state’s system was reaching a breaking point. In a 2015 report, the ACLU wrote:
“The crushing caseloads have put dependency counsel in an impossible situation, forcing them to cut services, forgo necessary investigation and tasks, and choose between competing clients’ needs. As a result, California is violating federal and state constitutional provisions, as well as federal and state laws, that require the state to provide sufficient funding to enable dependency counsel to provide ‘competent and ‘effective’ assistance to children and parents.”
In order to bring caseloads down, attorneys who represent roughly 75,000 foster children across the state would need a state funding increase of $22 million, bringing the total up to $136 million. That money funds attorneys who represent both children and their parents, who by law must be provided their own legal representation.
In 2016 – after the Judicial Council changed the way it divvied up funding between counties – San Diego County lost $1.6 million in funding for dependency counsel.
And without a boost in funding, money for attorneys in San Diego County would drop again next year – from $7.7 million to $5.6 million – a cut of roughly $2 million. Dependency attorneys in San Diego would still lose $828,000 even with the additional funds they’re requesting, but the loss would be far higher without the additional funding.
But despite pleas, including an unprecedented letter sent in May, wherein 150 Superior Court judges representing 41 counties pleaded with lawmakers and the governor to increase funding, advocates and attorneys have been routinely frustrated.
Even now, as attorneys face a flurry of new mandates Brown has signed, they’re bracing for a budget they say shortchanges children. Foster care advocates are waiting to see if the funding they requested survives closed-door negotiations happening now between the lawmakers hammering out budget details in Sacramento.
Ed Howard, senior counsel at University of San Diego’s Children’s Advocacy Institute, said this is the time of year that additional funding in the budget tends to get quietly axed.
“Everybody in the state Capitol says they understand that a child raised in a bureaucracy needs a champion. But what’s happened for the last two or three years, when everybody goes behind closed doors, we lose funding.” Howard said.
To Griesemer, the lack of funding is the difference between providing effective counsel and being stuck in a constant cycle of triage.
Dependency attorneys act as a backstop to advocate for all the things a typical parent would demand for their kids. But they’re not parents. For foster children, that role belongs to the state. Once children are separated from their family, the state becomes their legal guardian. Any change in their treatment, education or home generally requires permission from the court.
But new mandates and political realities will add to what attorneys already have to accomplish.
Griesemer sees laws signed in recent years by the governor – including a push to place foster children with family members whenever possible, and a 2014 law that ensures foster children have the chance to visit siblings – as well-intentioned but unfunded mandates.
Unless attorneys have the time to seek court orders to enforce the new statutes, the new laws and the advocacy efforts it took to enact them will be wasted.
In San Diego, President Donald Trump’s immigration crackdown presents another potential threat. If deportations increase, the kids left behind could fall to an already underfunded foster care system.
Griesemer said she hasn’t yet seen an increase in the number of those cases, but attorneys are bracing for the possibility. The bigger influx, she said, will likely come from victims of human trafficking – a familiar fate for girls in foster care, who experts say are more likely to be exploited. One human rights organization estimated between 50 to 80 percent of children sex-trafficked in California had been involved with the foster care system.
A state law signed in January means that anyone under the age of 18 won’t face prostitution charges and are to instead be treated as victims of human trafficking.
The change was an important one that decriminalized exploited children, said Griesemer, but it also means more work. In the past, those were handled by public defender’s offices. Now, if a foster child is involved in a human trafficking case, the attorneys who represent them through the foster care system will shoulder the work.
In 2014, Brown signed legislation that put sexually exploited children under the care of the foster care system if they have no other legal guardians.
On a recent afternoon, Griesemer showed me around Children’s Legal Services’ modest and tidy office space in Kearny Mesa. Attorneys, preparing for trial or writing motions, worked quietly in their cubicles. Griesemer stopped by a file cabinet stuffed with folders.
“Every one of these files represents a child,” she said. Not long ago, Griesemer attended a presentation, part of which was delivered by a foster child. “‘Don’t ever insinuate that I’m just a case file,’” Griesemer recounts the child saying. The message stuck with her.
Confidentiality laws make a complicated foster care system even more difficult to comprehend.
Court hearings are closed to reporters and the public. For an outsider to even observe what goes on during a court hearing requires a court order.
That confidentiality protects children’s information and potentially saves them from lifelong stigma. But it in some ways is also reduces them to numbers in a faceless system, and keeps members of the public from understanding the scope of the trauma they’ve suffered.
Sometimes trauma follows kids into the foster care system, too. Karen McCready, a veteran attorney at Children’s Legal Services, said she recently got a call and learned one of the children she represented wasn’t being fed by her foster parent. The foster parent was keeping food under lock and key.
Only because McCready and her colleague, an investigator with a social work degree, responded immediately were they able to get a court order to remove the child from the house the same week. Without legal representation, the child would have waited in an unsafe environment.
“It’s so important to act swiftly when a child is ready to talk to you. If they’re thinking they need to disclose something and you put them off, they may shut down forever and may never try it again,” said McCready. “Unfortunately, the more cases you have, the less you can call your clients back in a timely manner.”
The stark fact is that no matter how well those attorneys do their jobs, the odds are stacked against foster children. Statistics vary by study, but are consistently sobering: Nearly 60 percent of males who left foster care were convicted of a crime, one study found. Fifty-four percent suffer from mental illness after leaving the system. Only 50 percent complete high school on time and just four percent graduate college. Almost a quarter become homeless.
San Diego Councilwoman Lorie Zapf, a former foster child, believes more funding on the front end – in the form of education, transitional housing or vocational training – could save taxpayers on the back end and make it less likely for former foster children to end up in prison or reliant on social services.
“We’re talking about social services, homelessness, mental illness, prison. I mean, the statistics are staggering at the other end,” Zapf said. “We’re being so shortsighted by not investing the money needed now for prevention. And that’s the problem with our political system. People are always in it for the short term, because it’s their term. They say, ‘That’s somebody else’s problem down the line.’ No. It’s all of our problem. These are our kids.”
Howard from the Children’s Advocacy Institute also frames the problem in political terms. He sees the foster care system as the perfect example of the vast distance between how we hope our political system works and how it actually works.
“There are 50,000 kids in California’s foster care system who are severed from their parents. These kids don’t vote. They’re not connected to those who vote. Everything bad that happens to them is done in secret. It’s really distressingly simple as that,” he said.
In 2009, Howard helped Children’s Advocacy Institute file a class action suit in U.S. District Court in Sacramento alleging that excessively high caseloads — which reached roughly 400 clients per attorney at the time — violated numerous federal and state laws, including the children’s rights to effective counsel.
Children’s Advocacy Institute eventually lost the case on appeal. But even today, Howard said the central problem isn’t lack of money – it is lack of political will.
Howard argues additional funding should be shifted from the general budget and said the $22 million that advocates, attorneys and judges are requesting amounts to “budget dust” in the state’s $124 billion budget.
“We have the money to fix this. What we don’t have is the committed spirit,” he said. “We don’t have one person who stands up and says this can’t happen anymore. We’re basically abandoning these kids to a government bureaucracy.”