Lost Children: An Exchange

To the Editors:

I am grateful to James Traub for his appreciative review of The Lost Children of Wilder: The Epic Struggle to Change Foster Care [NYR, May 17]. But in elaborating his conclusions, he misinterprets mine, and offers an overly rosy picture of child welfare in New York today.

Traub wants to divide would-be reformers between moralists and those willing to accept the politically possible—e.g., people willing, like him, to celebrate Mayor Rudolph W. Giuliani. But surely in the context of my book, any assessment of Mayor Giuliani’s child welfare policies must include their impact on Lamont Wilder’s son, Sheemie, rather than only on Nicholas Scoppetta’s Administration for Children’s Services. In fact, even as Judge Robert Ward was approving the settlement that put to rest twenty-six years of Wilder litigation, and thus creating the expert panel whose recent report so impresses Traub, another federal judge in the same courthouse was determining, in Reynolds v. Giuliani, that the mayor’s policies had illegally endangered needy children. The little boy at the center of that case, unbeknown even to the lawyers involved, was Sheemie, Shirley Wilder’s only grandchild.

Sheemie was three in 1998 when the mayor vowed that New York City would be the first city to end welfare. That December, unemployed, behind in rent, and running out of food, Sheemie’s mother, LaKisha Reynolds, went to her local welfare center. But under policies aimed at deterring applications for government benefits, she was turned away with only a referral to a charity food pantry that was bare. Legal Aid lawyers challenging such practices later made her lead plaintiff in Reynolds. Lamont, living hand to mouth as a barber after a damaging $531,000 upbringing in foster care, also turned to the city that winter, when an illegal eviction left him homeless. Like a growing number of single working men, he found himself caught in the “overnight circuit,” waiting until 3 AM for a shelter cot he had to vacate at dawn.* On the book’s last page I report that early in 2000, Lamont was jailed overnight for failing to pay child support, that Sheemie wrecked his kindergarten classroom, crying, “My mommy put my daddy in jail,” and his teachers vowed to call child protective services. The unintended consequences of welfare reform threatened to send Wilder’s third generation into the foster care system.

Of my book, Traub writes: “What Bernstein leads us to feel, time and again, is a terrible permeability, in which the horrors of the street and the horrors of the foster care system flow back and forth.” Yet somehow he fails to recognize the terrible permeability of poor children’s lives to the tough policies aimed at poor parents. I wrote in the introduction, “There has long been an iron rule in American social welfare policy: conditions must be worse for the dependent poor than for anyone who works. The seldom acknowledged corollary is that the subsidized care of other people’s children must be undesirable enough, or scarce enough, to play a role in this system of deterrence.” It is this hard-won historical insight, and my knowledge of Wilder, not some legal absolutist’s opposition to the current mayor, that underlie my skepticism about the terms of Marcia Robinson Lowry’s last big legal settlement with the city.

To me, the deep history of the child welfare arrangements encountered by Shirley, Lamont, and Sheemie shows that at the heart of our foster care dilemma is the unacknowledged contradiction between policies that try to punish or deter the “undeserving” poor and pledges to help or rescue all needy children. To recognize this contradiction is not to say “that we can do nothing until we’ve done everything,” as Traub translates it. Rather it is the necessary groundwork of a broader national debate about child welfare—that is, about what serves the well-being of children.

Traub apparently would have us believe that Scoppetta’s accomplishments give Sheemie “a significantly better chance of being helped” inside the system. Yet even in the narrow terms of the panel report he cites, Traub overstates the case. The panel, while praising the city’s “remarkable progress,” also noted that the changes had barely penetrated the private agencies that care for 90 percent of the children. Scoppetta’s own caseworkers, the panel reported, often cannot explain in family court why children were removed from their homes, and judges, operating out of fear, frequently approve foster care placements even when the city fails to provide sufficient evidence of abuse or neglect.

Experts are pleased that the emphasis on child removal that characterized the first three years of Nicholas Scoppetta’s tenure has shifted to a slow recognition that child safety is often better served by preventing placement. But during that learning curve, annual removals surged to 12,536 in fiscal 1998, from 7,949 in 1995, before subsiding to about 10,000, with nearly half the children coming from the same dozen community districts. These are the neighborhoods most affected by what I called “the criminalization of poverty”—not a phrase I applied to the mayor’s workfare program, as Traub mistakenly reports, but to the practice of prosecuting as crimes cases of child neglect linked to poverty that typically had been handled elsewhere as matters for counseling: leaving a child unattended at home while buying groceries, for example, or having a child wander away during a family eviction. And though Traub writes as though Scoppetta’s neighborhood-based plan had actually ended the practice of sending children far from their homes, by the city’s own figures, 86 percent of children who entered foster care between July and December 2000 were placed outside their own community district; half were placed outside their home borough. One can commend this as an improvement without suggesting that it would substantially change the experience of a troubled six-year-old who entered the system.

Unfortunately, the same elements that made Scoppetta’s accomplishments possible also make them tenuous: a shrinking foster care population; public scrutiny (including the scrutiny that litigation helped muster); and the mayor’s political and financial commitment to an overhaul, spurred by a national scandal and his own national ambitions, and backed by an economic boom. History shows that it is always easier for the city to demand changes of the foster care agencies when they are competing for a shrinking pool of children. The decline of the foster care population today, to about 30,000 from a 1991 peak of 49,100, in part reflects the departure of a huge cohort of children who entered the system during the crack epidemic and are now reaching adulthood—a self-limited phenomenon. Past overhauls came undone when public attention waned, the foster care population rose, and competing political interests clashed with the needs of the children in the system. Indeed, the whole concept of agency accountability, and the last comparable overhaul of the bureaucracy, took hold in the first decade after Wilder was filed in 1973, in years when the foster care population dropped to 16,500 from about 28,000, and when the lawsuit, though stuck in the courts, was in some ways driving city policy. As the civil liberties lawyer Paul Chevigny told me: “A case can act as a midwife to change. You can’t read the social forces in advance.”

Certainly no one could have guessed that a book about Wilder would be timely in 2001 because the “new” solution to the problems of poverty was “faith-based” social services. Justine Wise Polier must be snorting in her grave. Yes, she was uncompromising. But her objection to the Wilder settlement was not simply based on First Amendment absolutism, as Traub suggests. It was rooted in her experience of the system when its poor children were overwhelmingly white, and when religious sectarianism, not race, shaped their harmful treatment. And by Traub’s own account, she was hardly wrong to fear that compromises in the 1984 Wilder settlement would not yield reform.

Our Constitution holds out the promise that inequalities of wealth and power, which put poor children at such a disadvantage at the ballot box, can be erased in the courtroom. Traub correctly notes that even when that promise is fulfilled, the translation of a court order into reality is another story. But that reflects as much the limitations of the Scoppetta approach as the shortcomings of what Traub calls “moral reckoning.” Both are necessary and insufficient. In the end I termed Lowry and Scoppetta “collaborators in the same fiction,” the fiction that the realms of poverty and child welfare can be separated, because the convergence of those realms is to me the major lesson of the Wilder children’s lives. I do not conclude that Lowry was morally wrong or right to settle. Litigation is politics by other means; there are no perfect choices. The question is how to make the political choices better for the real children at stake. Surely confronting the past, without either self-delusion or despair, is a start.

Nina Bernstein

New York City

To the Editors:

James Traub’s thoughtful and provocative review of The Lost Children of Wilder raises important issues about the use of the courts to reform malfunctioning social systems, particularly the child welfare system that is so hidden from middle-class view. As the lawyer who brought the Wilder lawsuit, which creates the framework for The Lost Children of Wilder, and the subsequent foster care reform lawsuit, Marisol v. Giuliani, which is discussed in the book and at greater length in the review, there are important additional points that need to be made—and corrected.

The Wilder lawsuit, brought very early in my legal career, was probably rooted in a more naive, and certainly more simplistic, view of what it would take to reform foster care in New York. Establishing the right principles, as Bernstein believes, while an important first step, does not change the lives of children any more than good laws do—if they are not implemented. That is why it is important to understand that in 1987 the Wilder lawsuit was settled, not dropped as the review states, and that New York City’s child welfare system remained under constant court oversight.

Bernstein chooses to ignore implementation of the Wilder settlement, and Traub simply accepts Bernstein’s judgment that Wilder accomplished very little. In fact, the Wilder settlement, for the first time, prohibited discrimination and the imposition of religious practices by private, publicly funded religious organizations. (The court order was so disturbing to the private religious agencies that they fought it on appeal—and lost.) Wilder kept pressure on the city to seek improvements in child welfare, including hiring a larger number of skilled workers. It also served to block harmful child welfare plans, leading to a federal court restraining order against a managed care plan proposed by the Giuliani administration solely to save money but that would only have ended up hurting children.

I readily acknowledge that the Wilder lawsuit and settlement did not have a broad enough scope to generate adequate reform across New York City’s child welfare system. It was the opening salvo in struggle for reform, based on principle—the right principle—but did not address the day-to-day workings of a destructive system. That is why, in 1996, Children’s Rights—the organization I founded in 1995 and direct—began a new, broader lawsuit, Marisol v. Giuliani, that focused on every aspect of New York City’s child welfare system. We settled that lawsuit in December 1998 on very different terms than Wilder. The Marisol settlement created a panel of national experts to evaluate the city’s child welfare practices, guide the city toward better practices, and evaluate its progress. Terms of the Marisol settlement provided that if the panel found the city was not making “good faith” efforts toward reform, the lawsuit would resume. Traub is correct in stating that Bernstein criticizes the Marisol settlement in her book, but incorrect in stating that the price of this settlement was to “forego further class-action lawsuits.” There was only a two-year moratorium on class actions, which seemed fair in order to give the city breathing room to implement the reforms we were certain the panel would require.

In her book, Bernstein underestimates the impact of the Marisol settlement, while in his review, Traub overstates the degree to which the city has been able to achieve needed reforms. The Administration for Children’s Services (ACS) has certainly promised all the reforms Traub lists, but it is clear that the Marisol panel’s pressure—and the possibility of being hauled back into court—created the backbone, advice, and support for Nicholas Scoppetta’s genuine commitment to reforming a system damaging children. I wish all the reforms listed by Traub had actually been implemented, but too many remain in the planning stages, as the panel itself pointed out in its final report, and children have still received too little benefit. Unless ACS and the city administration acknowledge this current reality, more targeted lawsuits may well be necessary.

The Wilder lawsuit was only the first major class-action lawsuit to seek reform of a system whose devastating harm to children is poignantly revealed by Lamont Wilder’s story. Wilder was played out in a uniquely New York context, in which powerful and influential philanthropic organizations had a stake in the status quo, and was brought at a time when children did not even have a clearly established right to bring federal lawsuits and child welfare systems were largely immune to public scrutiny. As Traub recognizes, the Bernstein book does an extraordinary job of humanizing the consequences of thoughtless, unexamined decisions on the lives of a parent and her child. But as Traub also recognizes, declarations of right and wrong and statements of exemplary principles do not, in themselves, change large, complex bureaucracies. Today, child welfare lawsuits, many brought by Children’s Rights, are being used around the country to propel better services for children. They are resulting in dramatic increases in funding, better training for workers and foster parents, increases in services for parents, children, and foster parents, increased adoptions, better information, the establishment of standards, and regular monitoring and reporting of compliance with those standards.

As someone committed to using whatever devices are available to ensure that child welfare systems function more constructively, I believe that the courts are truly the last resort for the powerless. As Traub points out, there are few as powerless and invisible as the neglected and abused children in this country’s foster care system. These systems can and must be reformed. Contrary to Traub’s comments, we can make an enormous difference for children, no matter how damaged, if we give them a chance. It is not “perfectly understandable” to abandon these children, as Traub suggests. Nor should we abandon any approach that might achieve results simply because we cannot accomplish everything through a lawsuit, as Bernstein suggests. I agree with Bernstein that the right principles are crucial, but I know from experience that they are no more self-enforcing than the Bill of Rights. Lawsuits are an imperfect vehicle, but they are an essential element of what must be a national campaign for reform on behalf of children who are seldom seen and never heard.

Marcia Robinson Lowry

Executive Director

Children’s Rights Inc.

New York City

James Traub replies:

It is surely right to say, as Bernstein does both in her letter and in her book, that our failure to provide humane and effective child welfare services should be seen as part of the larger failure to find humane and effective solutions to the problem of entrenched poverty. And it’s certainly true, as well, that children suffer the consequences of punitive policies toward the homeless and toward welfare recipients. (I criticized Mayor Rudolph Giuliani on both counts in “The Desert Prince,” NYR, October 19, 2000.) But child welfare was an even more horrific mess, as Bernstein demonstrates, in the 1970s and 1980s when New York City was more generous than it is now toward welfare recipients and the homeless. A welfare policy that inadvertently encourages long-term dependence on the state is bad; so is one that forces poor women to scrounge for food. We do, as Bernstein writes, need a “broader debate” to get at the nexus of poverty and child welfare, but if the terms of that debate are simply “hardheartedness” and “compassion,” we won’t get very far.

Perhaps Bernstein and Lowry are right that I overstated the gains that the Administration for Children’s Services has made since the settlement of Marisol. The overwhelming majority of children are still being placed far from home, as Bernstein notes, though the panel report concludes that “children are significantly more likely than they were a year ago to be placed near their homes.” Rather than saying that a child has a “significantly better chance of being helped” in the system today, I might have quoted Douglas Nelson, the president of the Annie E. Casey Foundation and the chairman of the special advisory panel appointed to monitor the Marisol settlement, who said to me, “Pieces of the day-to-day experience of kids are much better than they were five to six years ago.”

It is certainly true that the history of foster care offers no grounds for strong optimism; but the advocates I spoke to were more sanguine about the changes that the ACS had made than Bernstein is, and more likely to give credit to Scoppetta and even to the Giuliani administration, which they had grown accustomed to viewing as an adversary. And I do think that this success, partial and perhaps transitory though it is, should make us think anew about the politics of moral reckoning that were represented by Wilder and similar lawsuits.

Bernstein writes that “our Constitution holds out the promise that inequalities of wealth and power…can be erased in the courtroom.” Lowry, too, describes lawsuits as “the last resort for the powerless.” But the lawsuit, and especially the class-action lawsuit, is a double-edged weapon. On the one hand, the courts are often the last resort. How long would black people have had to wait to gain full citizenship had they depended only on state and federal legislation? What’s more, as Lowry points out, the threat of a lawsuit can force a reluctant legislature or executive to act. On the other hand, courtrooms are not good places in which to actually fashion social policy. Judges are often too far removed from daily reality to construct wise solutions to complex problems. This often proved to be true in desegregation cases, and it remains true today in such matters as special education and bilingual education. Moreover, lawsuits can take so long to settle that they outlive the problem they were designed to address, as happened in the original Wilder lawsuit, with its brief against the use of religious organizations in assigning children to foster care.

Does this mean that victims of environmental harms, the disabled, asylum seekers, and others should stop suing and wait for redress through the political system? No. It means that we should be aware of the consequences of legislation-through-lawsuit, and of the danger of multiplying rights, and we should act with consciousness of those dangers. Would it, for example, have been good for the poor if the “welfare rights” movement of the Sixties had succeeded in establishing an unconditional right to welfare for all recipients? It certainly seemed so at the time. In retrospect, I think we can now see that it would have made meaningful welfare reform impossible. Perhaps, then, children in foster care should feel grateful that the Wilder and Marisol cases were filed in their behalf; but they may also be grateful that both cases were settled before a judge could impose terms of his or her own.