A court’s eugenics revival 

Judge O’Connor’s decision is almost certainly unenforceable, but it’s still bad for children

Some men in their 60s and 70s are suing the state of Massachusetts for branding them "morons" as children and locking them away in the Fernald State School, a hideous institution where they were abused and fed radioactive oatmeal as part of a science experiment.

            A Boston Globe story describes the men as "among thousands of people around the country who were institutionalized as a result of the eugenics movement, which was based on the now-discredited idea that people judged inferior should not be allowed to reproduce."

            The rationale for eugenics was the good of society: the cost of dealing with those deemed inferior should not have to be borne by the rest of us.

            The practices at Fernald continued into the 1960s, making it probably the last gasp for eugenics --- until a Monroe County Family Court Judge breathed new life into it this year.

            In a decision that came to light last month, Judge Marilyn O'Connor deemed two Rochester parents, Stephanie P. and Rodney E., too inferior to reproduce and ordered them not to do so unless they could prove to the judge's satisfaction that they were able to raise and support them. Stephanie wasn't branded a "moron" or "feebleminded." Instead, the tabloids would call her a "druggie mom." That, defenders of this decision say, makes the case different. This mother and father made a choice, it is said. They put their addiction ahead of their children. And it is for the sake of those children, present and future, that they shouldn't be allowed to have any more.

            But in truth, there is no child-protection rationale for this decision, since the decision is widely seen as unenforceable; think of it as symbolic eugenics. And Judge O'Connor actually writes very little about the need to protect children, or even about drugs. In contrast, she says an enormous amount about the financial burden on the rest of us --- the Fernald rationale.

            In the process, she does enormous harm to children. She gives comfort to those who believe that child-welfare systems in general and Monroe County's in particular already lavish help on birth parents, when in fact they usually offer almost nothing. She perpetuates the myth that we can routinely tear good children from "bad" parents and do those children no harm. And she ignores the real waste in child-welfare spending --- enormous sums doled out for needless removal of children and needless institutionalization of those children, both of which happen far more often in Monroe County than in the average New York county.

            The overwhelming impression this decision leaves is one of greed. Like the eugenics advocates of the last century, Judge O'Connor returns over and over to the issue of dollars spent by "society." Her key criterion for banning procreation is not the parents' drug abuse --- rather, it is their poverty.

            In laying down her personal criteria for permissible procreation, the judge declares that "providing care for the children includes providing financial support." "This is a practical, social economic and moral reality," she says.

            Elsewhere, she says: "There is absolutely nothing precious about giving birth to repeated children, only to immediately require friends, relatives, or strangers, as well as society as a whole to raise those children at its expense." And later: "This court believes the constitutional right to have children is overcome when society must bear the financial and everyday actual burden of care."

            This standard can be applied to any number of clean, sober, caring parents. Under Judge O'Connor's standard, good, loving parents in inner-city Rochester who lose their jobs and incur catastrophic medical bills should not be allowed to procreate. The hypothetical couple in Brighton or Pittsford who get roaring drunk every night, or do cocaine in the more refined, middle-class manner --- but hire a nanny at their own expense --- are welcome to have as many children as they wish.

'Generosity and kindness'

Child-welfare systems are arbitrary, capricious, and cruel. They leave some children in dangerous homes even as others are taken from homes that are safe, or could be made safe with the right kinds of help. The removal of a child from such a home often is an enormous trauma. Young children often feel they have done something wrong and now they are being punished; they may experience it as akin to a kidnapping. Children bounce from foster home to foster home, emerging years later unable to love or trust anyone.

            Yet Judge O'Connor is fed up with birth parents who are insufficiently grateful for all this. In the decision's most Orwellian line, she writes: "The generosity and kindness of society has been abused enough."

            In fact, it would be hard to find a modern industrial society that does less for its poorest citizens. The disappearance of unskilled manufacturing jobs, the decimation of unions, the lack of educational opportunity, and common, garden-variety racism also are "practical, social economic and moral realities." They conspire to make it impossible for a great many good human beings to support their children financially. They also conspire to plunge some good human beings into an abyss of despair so profound they see drugs as their only escape.

            As for America's "generous" expenditures on child welfare, the entire annual federal commitment is about $10 billion --- about one half of 1 percent of the total federal budget. Like most counties, Monroe relies largely on that money and state aid to fund its child welfare system.

            The total county budget is nearly $1 billion. Of that total, the entire budget line for all substance-abuse treatment programs --- not just those for parents --- appears to be $9,335,477 --- less than 1 percent of the county budget. The entire budget for "preventive services," both to help keep children out of foster care and to shorten their stay, is no more than another $9 million, and that includes adult preventive services, primarily for the elderly.

            Even what Judge O'Connor calls the "shockingly large" expenditure on foster care, which she puts at $32 million, is a small fraction of the total budget --- and the real outrage isn't the amount, it's that so much of the money could be better spent helping families. So much for generosity.

            Judge O'Connor, said to be a liberal, plays into the hands of right-wingers who want to abandon the poor entirely when she claims that generous services are available for these families when they are not.

            But we wouldn't want to raise taxes to provide real help to families, would we? In fact, we wouldn't even want to transfer money wasted on needless foster care. So, apparently, we are to ban procreation by the poor because Judge O'Connor is tired of seeing our past "benevolence" abused, and now she wants to be sure middle-class families have a few more dollars in their pockets to gas up their SUVs.

            Why are we, in fact, so stingy with these families? Because we hate them. And why not? The headlines tell us that foster children are taken from parents who beat them, rape them, and torture them. In a few cases, that's true. But far more common are cases in which states and counties do exactly what Judge O'Connor wants them to do: They take away children because the parents are poor.

            For example, in Flint, Michigan, the foster-care population has doubled since 2000 --- and even the head of the county child-welfare office says one of the main reasons is that they're removing children from women forced to leave them with unsuitable caretakers while they go to jobs they must take under the state's welfare laws.

            Closer to home, Suffolk County allows families to be thrown out of homeless shelters, and their children thrown into foster care, if the parents don't dot every i and cross every t as they desperately try to comply with welfare-to-work rules.

            Defenders of the status quo insist that removing a lot of children is essential to keep them safe. But systems that rush to tear away children become overloaded, causing the enormous caseloads we've all heard about. As a result, workers lack the time to investigate any case with care, so they actually overlook more children in real danger.

            That's the real reason for the horror stories that often make headlines. In contrast, child-welfare systems that have been rebuilt to emphasize safe, proven programs to keep families together also improve child safety.

            In both Illinois and Alabama, class-action lawsuits spurred these crucial reforms. (The Alabama suit was brought by a lawyer who serves on the board of directors of the National Coalition for Child Protection Reform, which the writer of this article heads.) In both cases, independent court-appointed monitors have found that as foster-care rolls have declined, children have gotten safer.

            The widely repeated claim that agencies emphasized family preservation in the 1980s, causing children to languish in foster care while parents were "given" repeated "chances," also is a myth. I was covering child welfare --- and Monroe County government --- in the 1980s, and there was no golden age of family preservation. Children languished in foster care then, and now, not because agencies do everything for families but because they do nothing, or do the wrong things. Children are filed away and forgotten as overwhelmed workers rush on to the next case.

            And today, Monroe County lags far behind national leaders, and even the state average.

            My organization has compiled a Rate-of-Removal Index to estimate a state or locality's propensity for taking away children. We take the number of children removed from their parents over the course of a year and divide it by the total number of children living below the poverty line.

            Using data from 2002, the most recent for which comparative figures are available, the national average was 25.7 children taken from their parents for every thousand impoverished children in America. But Alabama removed only 13.4 children per thousand impoverished children, and Illinois removed 13.6. New York also did well, taking 15.6 children per thousand impoverished children. This is probably because of dramatic reforms in New York City --- where, again, thanks to litigation, removals have been slashed to 12 per thousand poor children, with no compromise of child safety.

            But Monroe County removed 24.3 children for every thousand poor children, well above the state average, and double the rate in New York City. That's a lot of wasted money --- and more important, a lot of wasted lives.

            And there's another area in which Monroe County's performance is even worse.

Overuse of institutions

One of the many tragic paradoxes of foster care is that the worse the option is, the more it costs. Group homes cost more than foster families, institutions cost more than group homes, and all of them are worse for children than care in a family.

            A hundred years of research is virtually unanimous: Institutionalizing children is inherently harmful. Even "good" institutions are bad for children. Indeed, the evidence is so overwhelming that the federal government now rates child-welfare systems in part on their ability to get children under 12 out of these places. Two literature reviews have found that one of the most expensive placements of all, "residential treatment," has only "weak evidence" to indicate it does anything for children --- and community-based alternatives are better.

            Nationwide, on any given day, 19 percent of foster children are in some form of "congregate care" --- that is, group homes or institutions. The state average is 20 percent. In Monroe County, according to county budget documents, it's 32 percent.


            Usually, this happens where longtime "providers" of institutional care are entrenched in a community. Their deep roots among the community's business and civic elite make them politically untouchable.

            The problem is compounded by the way these providers typically are reimbursed: They are told, in effect: "Remember, your first job is to get the child safely home or if that is not possible, adopted. But if you do that, we'll stop paying you. Make the child languish in your institution, and we'll keep paying you day, after day, after day." These per diem payments add up fast --- a year in a "residential treatment center" can cost $85,000 or more.

Attacking the wrong addicts

So in her desperate quest to save taxpayers' money, Judge O'Connor went after the wrong addicts. The biggest addiction problem in child welfare is not substance-abusing birth parents, though that problem is serious and real. The biggest addiction problem in child welfare is old-line, oh-so-respectable mainstream child-welfare agencies with their blue-chip boards of directors. They are addicted to per-diem payments. And they are putting their addiction ahead of the children.

            By sending the message that the system has plenty to offer troubled parents when, in fact, it does not, Judge O'Connor has helped every defender of this obscene status quo keep things exactly as they are.

            But what about cases where parents really are drug addicts? Wouldn't their children be better off elsewhere?

            That's certainly what the law guardian in this case, Eftihia Bourtis thinks. She told City Newspaper:

            "During sentencing, people would hate these people who are sentenced, who are drug addicts who don't take care of their kids. I thought to myself: What if I could meet them when they were little kids, when they were the ones who were being neglected?"

            Rarely are the middle-class rescue fantasies at the core of American child welfare expressed with such candor, and rarely do those in the system admit that the operative word for how most of them feel about birth parents is hate. Bourtis seems to relish taking swings at "bad mothers." Trouble is, it's very hard to do that without the blows landing on their children.

            University of Florida researchers studied two groups of children born with cocaine in their systems. One group was placed in foster care, the other with birth mothers able to care for them. After six months, the babies were tested using all the usual measures of infant development: rolling over, sitting up, reaching out. Consistently, the children placed with their birth mothers did better. For the foster children, being taken from their mothers was more toxic than the cocaine.

            So if we really believe all the rhetoric about putting the needs of children first, then we need to put those needs ahead of everything --- including the hate we may feel toward their parents.

            That doesn't mean we can simply leave children with addicted parents and go away. It does mean that for most families, drug treatment is a better option than foster care --- or eugenics.

            Of course, Bourtis insists this already is being done.

            "There are tons of drug programs, of parenting classes," Bourtis says. "But if the parents don't cooperate, there is nothing you can do."

            That's simply not true. The systems that succeed across the country have taught us that most parents do co-operate, if they are extended a helping hand instead of a wagging finger, but the wagging finger is far more common. Many troubled families need help in using help. Instead, they typically get a bunch of referral slips. And could you accept help from someone who hates you?

            If there are "tons of drug programs," then Monroe County is unique in the nation. Most communities have tons of waiting lists --- or programs that use a confrontational style geared to men that is useless for women. And there are almost no in-patient programs where children can live with their parents --- even though a federal report found these are the kinds that work best.

            None of this means that no child ever should be taken away. Some parents really are brutally abusive --- and some truly are hopelessly addicted. In those cases, agencies should move quickly to terminate parental rights and find adoptive homes for the children.

            Perhaps Stephanie and Rodney are indeed hopelessly addicted parents. Stephanie now says that she can't care for the children and isn't going to fight for them.But we don't know. Judge O'Connor chose to write new law at the expense of parents who were literally defense-less. They had no lawyer. So what we think we know of them comes solely from the testimony of a child welfare caseworker --- in effect, the chief witness for the prosecution --- and case records, which are the equivalent of an indictment.

            If Stephanie and Rodney truly were offered real help in ways geared to get them to use it, and they turned it down or failed, then their parental rights could have, and should have, been terminated years ago. The fact that termination hasn't been pursued after so many years raises questions about how this couple has been portrayed and whether the county made any serious attempts to help them - and thereby, help their children stay out of foster care.

            A child-welfare system that truly put the needs of children first would begin with trying to help their families. In model systems across the country, families have easy access to day care to avoid a lack-of-supervision charge, and housing assistance to avoid having children taken away because of homelessness. They have intensive family-preservation programs that combine traditional counseling with all sorts of concrete help to ameliorate the worst aspects of poverty. They train foster parents to work as mentors to birth parents instead of as adversaries. They convene "family team meetings" in which everyone who knows or cares about a family gathers around a table to come up with a custom-tailored plan to mobilize formal and informal supports to keep the children safe.

            And they have easy access to drug treatment because, as columnist Ellen Goodman put it long ago, "you can't save the babies by throwing away the mothers."

In these systems, far fewer parents have child after child whom they can't care for; and there is plenty of room in good foster and adoptive homes for the few children of truly incompetent or sadistic parents.

            And good news, Judge O'Connor: All this actually costs less than foster care.

            Those who insist it's impossible should get out of town --- take a "best practices" tour and visit the communities that do the "impossible" every day. And to those in county government getting ready to write a letter to the editor claiming that "we already have" this or that or program I would reply: The numbers of removals show that if you have it, you're not doing a very good job of it.

            Places that do child welfare right don't have to try reviving eugenics, not even symbolically.

            Former City Newspaper and WXXI-TV reporter Richard Wexler is executive director of the National Coalition for Child Protection Reform, based in Alexandria, Virginia, www.nccpr.org. He is the author of Wounded Innocents: The Real Victims of the War Against Child Abuse (Prometheus Books: 1990, 1995).

Confusing poverty

with neglect

When I speak to groups around the country, I often close with the story of a man who, by Judge O'Connor's key criterion, also would have been banned from procreating.

            Over the years I've often read news stories in which someone says, often gleefully, that thanks to a dreadful federal law called the Adoption and Safe Families Act, parents have only a certain amount of time to "clean up their acts."

            Whenever I read that phrase, I think of a man I wrote about in my book, Wounded Innocents. His name was James Norman.

            Norman was a steelworker in suburban Chicago. He had to give up full-time work to care for his wife when she became ill. After she died he developed a heart condition. Eventually he fell behind on the bills, and the electricity to his apartment was cut off. Then the helping hand of child-protective services struck.

            A caseworker found a messy home with food spoiling in the refrigerator because there was no electricity.

            So she took the children on the spot --- and charged James Norman with "financial neglect" --- which is essentially the charge Judge O'Connor levels against those she feels should not have children.

            The foster home was 10 miles and three bus rides away. Norman walked a mile at each end of the trip to visit his children.

            The people at the child-welfare agency could have provided James Norman with homemaking help, but they did not. They could have provided emergency cash so he could get the power turned back on, but they did not. They could have helped him find a job, but they did not. At least they could have provided transportation to help him visit his children. But they wouldn't do that, either.

            In effect, the agency told James Norman to drop dead. And 12 days before a hearing at which he might have gotten his children back, he obliged child protective services and did just that.

            James Norman died at the age of 38. He had always had a weak heart, but it took child protective services to break it --- and to make orphans of the Norman children.

            So whenever I read about the supposed need for parents to "clean up their acts," I wonder: what was it, exactly, about James Norman's "act" that needed to be cleansed?

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