By Judge Darlene A. O’Brien
Washtenaw County Trial Court
What a pleasure to be in the audience as retired Judge William Thorne discussed our child welfare system and its effect on our children. Judge Thorne hales from California and served as a tribal court judge in numerous states, a trial court judge in Utah and a judge on the Utah Court of Appeals, totaling more than 30 years. He has become nationally recognized for his efforts on behalf of children in foster care. Having heard his wisdom at a Michigan Probate Judges Conference a few years ago, I was eager to be part of his day at the Washtenaw Trial Court as guest of Hon. Timothy P. Connors.
Judge Thorne began with a slide quoting Robert F. Kennedy’s words that moral courage is a rarer commodity than bravery in battle or great intelligence. He then recounted abysmal statistics about the 800,000 children who will find themselves in foster care sometime this year—twice the number in the 1980s:
• On average children spend 2 years in foster care in an average of 3 placements
• 65 percent of children in foster care have at least 7 school changes
• Less than 2 percent of the children who were in foster care for even a day graduate college
• 25 percent of the fostered children suffer from post-traumatic stress disorder
• 33 percent were at or below poverty
• Most of those in foster care were children of color, poor or born to uneducated parents; but an even more ominous predictor of lack of future success was having been in the foster care system
The prognosis for the 23,000 foster children who turn 18 and age out of the system is bleak: Within 2 years 60 percent are reported to be homeless, in jail or dead. When one considers the statistics, there was little wonder in Judge Thorne’s conclusion that children are often safer in unlicensed care with their kin than in stranger-run foster care.
The poor prognosis is understandable when one realizes that children in foster care are typically not taught to make decisions for themselves. There are rules in foster care and the youth are left out of the decision-making process. Children in foster care have not just been removed from their parents but in the termination process they may have lost their aunts, uncles, grandparents and other extended family who provide comfort, guidance and serve as examples on how adults make decisions and exercise good judgment.
The timing of being placed in care is of critical importance based on what we have learned about brain growth. Judge Thorne explained the greatest brain growth occurs between birth and five years, and during the teenage years, because during these sensitive times, layers are added to the brain. Although a child’s genes determine when brain growth happens, a child’s environment can effect whether this growth actually will occur. Mutually rewarding interactions—hugging, positive eye contact, soothing a baby—are essential for healthy brain growth. Long term, intense or toxic stress, such as when children lose a loving adult relationship and/or separation from bonded siblings, may irretrievably impair healthy brain development.
Although foster care may be the only alternative in some cases, Judge Thorne believes that it should not be the first choice of placement for children. Unfortunately, because of federal funding issues, removal of children from their home too often becomes the system’s first choice in part because federal Title IV-E funds are not available for services provided prior to removing the child from the home. However, after removal and placement in a licensed foster care home, the state can receive 70 percent reimbursement for the cost of services. Instead of making the initial placement decision based upon what may be in the best interest of the child, such as a familiar but unlicensed grandparent’s home around the corner, the first official placement must be licensed foster care or the important IV-E funding is lost. Instead of being motivated by the dollars, Judge Thorne counsels that what should be of primary importance is fostering the child’s sense of adaptive coping and sense of control.
But there is hope: Judge Thorne explained the outcome for youth in care can change if you begin by viewing the world through the eyes of the child. If a child has to be placed in care, a foster home should be favored over a group home, and the first day in that home should begin the planning for the transition back home with wrap-around plans to equip the child to succeed in the environment they will live in.
Particularly as they become adults, a healthy, supportive relationship with a caring adult, whether a teacher, social worker, pastor, former foster parents or even members of their former family of birth—someone willing to provide continuity for the now young adult—is vital their future.
Drawing upon his Native American roots, Judge Thorne came to southeast Michigan to provide training in Wayne County, explaining that one judge there, with the help of the community, is applying the higher “active efforts” requirements of the Indian Child Welfare Act to all the children, regardless of whether they can establish Native American heritage.
Why shouldn’t every court uphold that requirement? Under ICWA, any party seeking to place a child in foster care must satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the family and that the efforts have proven to be unsuccessful. Shouldn’t every child in America have active effort put in repairing the family before being whisked away by well-meaning strangers?
In Wayne County, a supportive church in the community supplements the one- or two-hour visitation supervised by the Department of Health and Human Services. According to Judge Thorne, adding just one more hour of visitation for the family triples the rate of successful reunification. During these periods the parent can learn how to engage in a positive way with their child, increasing the likelihood of changing the behavior that brought the family to the attention of the government in the first place.
According to Judge Thorne, if we call upon our moral courage, we can change from an agency focus to a child focus. We can then provide for each child what we would hope for our own child as we begin to repair the damage and provide safety and stability for our children.
The Hon. Darlene A. O’Brien is a Washtenaw County Trial Court judge, whose docket includes criminal and domestic relations cases. She belongs to the American Bar Association, State Bar of Michigan, Washtenaw County Bar Association, the American Constitution Society for Law & Policy and Women Lawyers Association of Michigan.
