DHS wants more money
 

Edward Johnston
1540 N. Nye St.
Toledo, OR 97391
phone 541-336-1233


To the Oregon Senate and House:

     Re:     Just Say No To DHS Increase


Dear Members of the Oregon Senate and House of Representatives:

I am writing to urge you to (as Nancy Reagan said) to just say “no” to the request for more funds from Department of Human Services. Thee are several reasons for my position on this:

  1.      To the best of my knowledge, the DHS budget already includes “black budget lines” for which the use of the funds are not stated by the agency. This kind of budgetary practice may be appropriate when issues of national security and covert operations secrecy are involved, but cannot be appropriate in the absence of any such concerns.
  2.      It is clear that the agency's priorities are not those of most Oregonians. While we all want to do whatever is possible and ethical to reduce or end both current child abuse and the future crimes likely to be committed by children abused now, it is not acceptable for the state to intrude in numerous overt and covert ways into the private and family lives of Oregonians. This is frequently done, either on the basis of allegations of behavior that, until recently, were deemed by all of society to be normal and appropriate, or on the basis of some statistical, survey or social science-thesis as to what is “normal” family raising behavior. This assumed “normalcy” turns out to be, upon closer exam, the norms of upper middle class urban families, and not necessarily those of working-class (or poor) urban residents, nor those of many rural families, nor for that matter the norms of many middle class urban families, either. In short, much of what DHS believes to be valid “social policy” is based on class-biased thinking, or on surveys that we have opposed for years as intrusive, illegal and unconstitutional. They should not get extra money to pursue the taking away of Oregonians' state and federal constitutional rights. As you will recall, there were hearings before a joint special committee on just these kinds of abuses - hearings at which the agency lawyers made it clear they would not disclose information to the legislators who had funded them. That occurred in the April 2, 2004 hearings on the Trenton Aue case
  3.      The agency has clearly failed to do what all Oregonians do agree and want DHS to do. That is, to protect children from genuinely violent, and potentially murderous situations - as opposed to criminalizing behaviors, whether spanking children or fighting [or even arguing, as SB 597 sought to include] between siblings. These are behaviors that for all of human history were consideed unfortunate, but hardly criminal and indeed normal parts of growing up. DHS has failed to protect children like Ashley Ponds and Miranda Gaddis, along with other children recently reported on in the press, who were starved or mistreated in foster care under the supposedly watchful eye of DHS. Until these profound failures and structural misdirections in DHS policy and action are corrected, adding money to its budget is merely adding to the problem not the solution. In fact, the extra funds could end up wasted on legal defenses for indefensible actions or failures by DHS public employees.

Please note that this argument is not about Oregon Health Plan. That is a separate matter. If the state has extra funds for social services, it should go to add dental care for children, including disabled and handicapped children, back into OHP.

I should add here that on Nov. 14, 2005, I tried to attend and video/audiotape a public class for the awarding of a certificate in Child Care/Prevntion Abuse Reporting held by DHS in Newport. I went in after forwarding DHS Newport a letter from Senator Gary George stating that it was the desire of him and other state legislators that I take the class and film it, so as to be able to report back to the legislature as to the contents and particulars of the class (paid for with state funds and given by public employees). Amazingly, I was all-but arrested. I was searched, my car was searched, and I was prevented from attending and recording the class by Newport police requested, presumably, by DHS. Whatever Newport DHS was teaching, it was obviously something that they did not want the legislature to know about. That unpleasant and costly event should strengthen the hand of any legislators who agree that DHS and particularly CSD are by now well out of control.

Rather than merely providing DHS more money, I urge the legislature to reconsider the bills that Sen. Gary George and others put in the hopper to reform DHS and its abuses of its power. SB 557 would have required DHS to have actual evidence before acting, and (except under the exception for exigent circumstances) to meet the normal and ordinary constitutional protections in the laws of evidence. Those protections are still not part of DHS practice; why parents should not have the same federal and state legal and constitutional protections that they have as citizens, defendants and victims, is beyond me.. SB 557 would have protected the agency, as well as adult and minor Oregonians, by ensuring that its ac tions are lawful and beneficial to society. SB 26 would have prohibited student survyes without written persmission from the parents, since the surveys were intrusive, unconstitutional, subject to satiric or deliberately misleading response by many children, and created situations where children were, like in Stalin's Russia or Hitler's Germany, informers for the state against their parents. There was also a bill sponsored by Senator Nelson and Rep. Nelson to make DHS employees liable for misbehavior that harmed the legally and/or constitutionally protected rights of parents.

The legislature should use the current funds request by DHS to compel DHS to accept these pieces of legislation, or their contents, in return for any extra funding.In addition, the legislature should use this opportunity to also enact legislation along the lines that I suggested late in the last session. The reasons for that legislation, and the legislation itself, are reproduced below, as attachments to this letter.

Sincerely,

Edward Johnston


Proposal for Drafting of legislation

In order to curb the abuses of the Children’s Services Division (CSD) of the state Department of Human Services, as made evident in the recent joint hearings chaired by Senator Fisher, a thorough-going review and revision of a large number of state statutes and implementing rules is required. Such a change should be intended to accomplish the following general goals:

  1.      Prevent future abuse of state power of the sort visible in the Aue committee hearings, abuses that harm parents and families, and also would-be foster parents and adoptive parents;
  2.      Streamline the ORS and OARs involved to be clearer and provide clearer guidelines and boundaries to CSD workers;
  3.      Ensure that the agency can, within finite resources, perform its valuable job and not waste time and resources on marginal or inappropriate cases.

Only in this way can we avoid the dual problem of state abuse of parents and would-be foster and adoptive parents and also the problem of the inability to prevent the Ward Weavers of Oregon from perpetrating truly heinous crimes on our children.

The specific goals of a rewrite of the relevant ORS and OARs would be:

  1.      To remove any legal basis for the misuse of confidentiality by DHS as a shield against the discovery of agency abuse or misdeeds, and ensure that confidentiality is held by the individuals - parents and children - who are protected by such confidentiality and can be waived by them only, when it is in their interest to waive it; and to also ensure that such confidentiality, though no longer available to DHS to cover up abuses, is retained by the agency for proper purposes of protection of secrets and confidences of the children and parents involved, so long as the children and parents desire that protection. Also, to limit the dissemination of the information deemed confidential but permitted wide dissemination within and among state agencies by SB 449 of 1999.
  2.      To make DHS and CSD, and any successor agency or agencies, and specifically, the employees of such agency or agencies, personally liable for abuses of parents, children and families; and to clearly define what is permitted and expected from the agencies and their employees and what is prohibited and a source of potential liability. Also, to ensure independent review of the abuses but to also ensure job termination for agency officials, both case managers and their superiors, who persistently perform or tolerate abuses.
  3.      Maintain the recently revised limitation on the statutory bases under which CSD may legally take custody from a parent or parents. In 2003 the legislature removed the prior catch-all clause that permitted state assumption of custody for “any basis” the agency “reasonably believes jeopardizes the child’s welfare.” The statute should continue to retain the other bases for assumption of state custody - physical, sexual and emotional abuse, abandonment and neglect, but the term “emotional” abuse should be clarified so as to encompass only emotional abuse that is severe and frequent.
  4.      Also, the statute should be changed to require a court finding of “probable cause” as conventionally defined in state law that such basis in fact exists, before the agency make take custody. There should be an “exigent circumstances” exception for this requirement for a warrant. However,such clause should also require the immediate return of the child to the family in the event that the claimed exigent ciorcumstances prove to be a false alarm, so as to minimize the damage to the family. Indeed, a letter of apology from CSD should be mandated in such situations - we all make mistakes - and the record of the alleged emergency should be expunged from all records. We do not want false or malicious information to enter the state's database and perhaps become a basis for future state suspicion of a family or its descendents when that family in fact did nothing wrong.. The hearing for the warrant required would be held under ordinary standards of evidence, with the ordinary hearsay rules and exceptions. This protection of the parents, through a right to receive prompt judicial review from a trier of fact outside the DHS system would also place the burden of proof upon the state, and the standard to be met, if not as difficult as “beyond a reasonable doubt” would, by the probable cause standard, be more than “a preponderance of the evidence.”
  5.      Ensure that DHS could not for whatever reason benefit, in good faith or otherwise, from the unavailability of parenting classes and/or home studies, and that placement of children taken from their parents would not be prevented from going to foster and/or adoptive parents on the basis that such potential new parents must have such class or home study if that such class or home study is not available within the time frame mandated by ORS or OARs. We have seen this loophole abused by DHS in the Trenton Aue case, for the apparent purpose of allowing the agency to chose its preferred foster parents, even though those individuals were not the ones actively providing foster parent services to the child at the time.
  6.      Remove any financial incentive currently present to send children taken from their parents to new adoptive or foster parents out of state. The hearings before the committee Fisher chaired made it clear that the existing rules can be used to ensure out-of-state placements, even though such placements violate the norms, as stated by the DHS attorney, that are supposed to guide the agency in choice of placements.
  7.      Because of the breach of those norms, it is also necessary to review the current means by which the preferred traits of foster or adoptive parents are not only defined, but weighed. Preference should be given to foster or adoptive placement that is (a) with immediate family, (b) ensures access to siblings, (c) is given if not to immediate family than to other adults known to and close to the child, and, wherever possible, in proximity to the siblings, family and community the child knows. These factors must be balanced against any danger of continued abuse to the child from the parent(s) losing custody, of course. But that danger must be balanced against the harm to the child from being taken from not only allegedly abusive parents but siblings, friends, other nearby family members, familiar community and school surroundings. This balance could be achieved either by a system of weighted points for each such concern or factor, or by establishment of a hierarchy in which the highest must be met and only if it cannot be met can the agency go down the hierarchy to a placement lower on the hierarchy.
  8.      Clearly, the legislature needs to amend the statutes so it can have access, with or without subpoena, to court records regarding child adoption, custody, and juvenile cases so as to maintain its oversight capacity, which it mistakenly gave away with other legislation, i.e., SB 449 (1999) Note that the Federal Adoption and Safe Families Act of 1997 was “adopted” by Oregon, according to DHS lawyer LeDesma. It can therefore be amended or repealed by the legislature. It is not federal law that binds the states if it has to be adopted by the state to apply.

Such new state laws and rules would also have to not be in conflict with applicable federal laws and standards. Given that, they can and should be imposed on what has become a rogue agency, now that it's own excesses have brought them to the legislature with their hat in hand.

 

 


THE OREGON LEGISLATIVE ASSEMBLY - 2005 REGULAR SESSION

NOTE: Matter within { + braces and plus signs + } in an amended section is new. Matter within { - braces and minus signs - } is existing law to be omitted. New sections are within { + braces and plus signs + }
                    Senate/House Bill

 

Relating to Department of Human Services taking custody of children, and creating new provisions regarding Chapters 418, 419A and 419B.

WHEREAS, despite the best efforts of the Department of Human Services and its Children's Services Division, Oregon children continue to suffer abandonment, neglect, physical and sexual abuse, kidnap and even murder; and

WHEREAS, across the state there are parents who assert that the Department and/or CSD took custody of their children and/or brought charges against the parents for alleged abuse when, the parents assert, the only acts they took were reasonable and ordinary forms of punishment such as spanking; and

WEREAS it is in the interests of the state and of Oregon's children and parents that the resources of the Department and of CSD are focused on cases of children believed, on the basis of mandatory reporter, law enforcement, neighbor, other witnesses or other reports, information or other evidence, to be at the greatest risk of the most severe harms and are not focused on cases of children believed to be at lesser threat, NOW THEREFORE it is enacted by the People of Oregon that:


(1) For all existing cases and files as of the date of effect of this bill, and for all cases and files opened or begun thereafter. The Department of Human Services' Children's Services Division (and any successor division or agency thereto) (hereinafter, for this section ORS 418.007, "DHS") shall require of all case workers, their managers and all other staff or agents (hereinafter, for this section ORS 418.007, "DHS staff") that the case be identified as a risk severity category A, B, C, D or E, and that the risk severity code be placed prominently on the front of every such file for every case managed or overseen by DHS. The risk severity code shall reflect two factors: the believed degree of possible harm possible and the likelihood that such harm will occur, as follows:

(A) Category A shall refer to cases where the DHS staff person believes the child is :
-     at a high risk of severe harm,
(B) Category B shall refer to cases where the DHS staff person believes the child is:
-     at a medium risk of severe harm;
-     at a low risk of severe harm;
-     or is at high risk of medium harm;
(C) Category C shall refer to cases where the DHS staff person believes the child is:
-     at a medium risk of medium harm;
(D) Category D shall refer to cases where the DHS staff person believes the child is:
-     at a low risk of medium harm
-     at a high risk of low harm
(E) Category E shall refer to cases where the DHS staff person believes the child is:
-     at medium risk of low harm
-     at a low risk of low harm

(2) "Severe harm" is defined for this section 418.007 as murder, abandonment, severe injury, persistent or extreme sexual abuse, and long-lasting psychological or emotional trauma. "Medium harm" is defined for this section as persistent neglect, less than severe injury, occasional less-than extreme sexual abuse, or temporary but significant psychological or emotional trauma.

(3) This act shall apply to all files and all cases of DHS Children's Services Division (and any successor division or agency) whether opened or maintained under ORS Chapter 418, Chapter 419A, Chapter 419B or any other statute in Oregon law or any administrative rule implementing Chapter 418, 419A, 419B or any other statute in Oregon law, and under any successor or successors thereto.

(4) DHS staff shall be able to change the risk category of a case for any child at any time based upon information received by the DHS staff person.

(5) All initial identifications of risk severity and all subsequent changes in risk category for all cases for all children shall be briefly explained in writing, in the file (which writing may simply be a reference to specific new information received that has been added to the file) signed by the DHS staff person making the risk severity identification or change in risk severity identification.

(6) (A) DHS staff persons shall apply DHS human, professional, financial and all other resources available to the DHS staff person, including his or her own time and expertise (hereinafter for this section 418.007, "DHS child resources"), first and foremost to Category A cases, and
(B) DHS staff persons shall not allocate DHS child resources to category B cases unless and until the DHS staff person has time and resources left to do so after timely completing all work at the time needed on the staff person's Category A cases.
(C) DHS staff persons shall not allocate DHS child resources to Category C cases unless and until the DHS staff person has time and resources left to do so after timely completing all work at the time needed on Category A and B cases.
(D) DHS staff persons shall not allocate DHS child resources to Category D cases unless and until the DHS staff person has time and resources left to do so after timely completing all work at the time needed on Category A, B and C cases.
(E) DHS staff persons shall not allocate DHS child resources to Category E cases unless and until the DHS staff person has time and resources left to do so after timely completing all work at the time needed on Category A, B, C and D cases.

(7) Any other laws or rules about confidentiality of DHS Children's Services Division files notwithstanding, any state legislator or aide thereto may review, inspect, and copy any case, any file and any information therein of DHS Children's Services Division for purposes of ascertaining if its risk severity categorization has been accurate or reasonable. However, no legislator or legislative aide may publicly name or identify, in writing or orally, a particular person, adult or minor, about whom a case or file is opened or created or was opened or created but it closed, without the permission of either the parents (or if one parent is out of the state, the in-state custodial parent) or of the child.

(8)     Any issue as to the accuracy or reasonableness of the risk severity categorization of any case or file relating to any person hereunder shall be subject to court review under the Administrative Procedures Act. + }

 

PROBLEMS with the DHS testimony at the Joint Interim Committee reviewing adoption, DHS, etc

  1.      LeDesma said that her office found two families in Oregon appropriate to the special needs of Trenton Aue but that “they went away.” When that happened, why were not the Gilberts (or the Fauvers) contacted. If LeDesma says it was because the Gilberts were inappropriate to Trenton, that is a lie, since they were already authorized as foster parents. If they were appropriate, then why were they not contacted? If they were appropriate in general, but not yet proven appropriate to Tenton’s particular special needs, why were the Gilberts not given a chance to show they were indeed specifically appropriate to Trenton’s needs? The clear implication is that there was a deliberate avoidance of the Gilberts. Why? Answering this question may get at some of the iceberg.
  2.      Also, LeDesma said she could not find “suitable parents.” But she had not looked, as evidenced by the a priori rejection of the Gilberts.
  3.      Further support for the conclusion something is very wrong, comes from LeDesma’s claim that 144 days is a very short time period to complete an adoption home study. If 144 days really was a short time and it refers to the Gilberts (as it seems to from the tape) then why could they not wait more towards the usual 300 days time frame before shipping Trenton to Ohio. And why were they able to do this study in such a short time - maybe because they already knew the answer they wanted to achieve given an intent to ship the boy to Ohio?
  4.      Note also that attorney Logan said, among the reasons for giving the boy to the Ohio couple, was that “the couple that got the child wanted the child.” This raised 2 questions: (a) didn’t the Gilberts and weren’t they more qualified simply by proximity, and (b) isn’t it the interest of the child, not the prospective parents, that counts the most? How dare she make this a reason for giving the child to a couple far from the child’s siblings, friends, school & familiar surroundings!
  5.      Finally, how do we know the boy is “safe and flourishing” in Ohio? How much extra cost is expended in monitoring the child 1,500 miles away from Oregon?
  6.      Trenton now is identified as having “abandonment issues” and a new problem of getting in fights according to the DHS personnel. Is it any wonder? How many other “special needs children” are having their special needs manufactured by the actions of DHS?

 

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