Proposal for Drafting of Legislation

Proposal for Drafting of Legislation

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

A.     Prevent future abuse of state power of the sort visible in the committee hearings, abuses that harm parents and families, and also would-be foster parents and adoptive parents;
B.     Streamline the ORS and OARs involved to be clearer and provide clearer guidelines and boundaries to CSD workers;
C.     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 of would-be foster and adoptive parents and also the problem of the inability to prevent the Ward Weavers of Oregon from perpetrating true 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 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. Also, to limit the dissemination of the information deemed confidential but permitted wide dissemination within and among state agencies by SB 449.
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.      Revise the current statutory bases under which CSD may legally take custody from a parent or parents, so as to remove the current catch-all clause permitting state assumption of custody for “any basis” the agency “reasonably believes jeopardizes the child’s welfare.” The statute should retain the other bases for assumption of state custody - physical, sexual and emotional abuse, abandonment and neglect. Also, to require a court finding of “probable cause” as conventionally defined in state law that such basis in fact exists, while retaining an “exigent circumstances” basis for genuine emergencies - which would, we presume, usually also meet a probable cause standard, but still be present in the event of a genuine emergency that for some reason does not meet the probable cause standard. The hearing would be held under ordinary standards of evidence, with the ordinary hearsay exceptions. This creation of a right in the parents 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” is more than “a preponderance of the evidence.”
4.      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 and that such class or home study is not available within the time frame mandated by ORS or OARs.
5.      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.
6.      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 weighted. Preference should be given to foster or adoptive placement that is (a) with immediate family, (b) ensures access to siblings, (c) is give if not to immediate family than to other adults know 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 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.

Such new state laws and rules would also have to not be in conflict with applicable federal laws and standards.