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Right now, I am sitting in the back of the courtroom witnessing a series of "status checks" on the cases of children who are involved in the foster care system. Each hearing is a tiny window into a complicated human drama that has been playing out for months or even years. Occasionally, you see the children themselves, but mostly this is a court for adults. In this courtroom, you learn about troubled parents and their efforts, or lack thereof, to get their children back.
Drug addiction primarily to methamphetamines, or "speed," at this point in history is the main reason that parents are here. Typically, the children have been taken into state protection because their custodial parent is arrested on drug charges or is found to be high while the children are in their care. Much of what transpires in Hardcastle's courtroom is discussion of the parents' progress in completing their "case plan," which is a written document specifying the steps they need to go through to get their children back. This plan frequently includes completing a drug treatment program, getting a job, finding a stable place to live and submitting to a series of drug tests. They don't have to prove that they are good parents, only that they have addressed the problems that brought the children into custody.
Passing before me now is a parade of the living and Living Dead. The Living Dead are human skeletons with sunken eyes and crumbling teeth, if any teeth at all.³ They twitch and sway before the judge. They sometimes have trouble forming coherent sentences. Some parties are there, some only partly there, and some are not there at all. Among the missing are many putative fathers. I love that word, "putative," meaning that which is theorized but not proven. You can only have one birth mother, but you can have a lot of putative birth fathers, at least until a paternity test. By the legal definition, there aren't many putative mothers, since almost every child can be easily traced to a specific womb. In a moral sense, however, all these parents are putative or they wouldn't be here.
[A case example is needed here, as well as several more examples to break up the exposition that follows....]
Some parents jump through all the hoops and show that they have done everything expected of them. These hearings are perfunctory: The judge thanks the parents for their progress; plans are made for the reunification of parent and child, and attention moves to the next case. The more interesting hearings, from a spectator's view, are when the parents are not making progress toward completion of their case plan. If these parents show up at all, they are armed with fabulous excuses sort of like, "The dog ate my homework," in endless variation. In that case, the main topic is "TPRs", or Termination of Parental Rights, followed by the procedures necessary for adoption.
"I just can't get started," one father tells the judge, after the caseworker reports that he has not contacted her in months and has made no progress on his case plan. "I know what I need to do," he says, "but darned if I know how to do it." I can tell he is an alcoholic, not a speed freak, because alcoholics appear more openly depressed and have a greater tendency toward inward-turning fatalism rather than actively blaming others, as speeders usually do. "I just can't help it," is a common alcoholic refrain.
The judge replies that time is running out. "We have resources for you, but it is up to you to use them," he says. "The caseworker has given you a referral to a treatment program, but it is your responsibility to actually go. The fact that you have shown up here in court shows me that you are capable of going somewhere if you want, so why not go to treatment? Just show up, that's the first step. I can also give you a lawyer if you want one, who can help you understand your options. We want you to succeed and will give you every reasonable opportunity, but you have to take the steps to make it happen. If you care about these kids and want to be part of their lives, then you have to do something, not just make excuses."
"It's a real conundrum," says the man. "and I wish I had some easy answers for you."
Sitting beside the man are his two young sons, currently in foster case, who also have not seen their father in months. (There has been no mention of a mother, who I assume has long ago left the picture.) I wonder what the boys are thinking.
[Need another case example here.]
The courtroom is small, but like others, it is designed both for functionality and dramatic effect. The judge, wearing a black ceremonial robe, sits in a typical raised box against the wall opposite the main doors, in a position that commands respect. A clerk sits behind a computer to the right of the judge at a level just below his. The bailiff, a uniformed officer, has a desk below them on the left, and on the right is a witness box, which is rarely used. In front of the judge, facing him, are the two tables you are familiar with from legal dramas. The Plaintiff table on the right is used by the Deputy District Attorney and caseworkers from the Department of Family Services (DFS). Formally, this is "the State," although these parties are now employed by the county. The Defendant table on the left is used by the other parties to the current hearing: parents, children, foster parents, and their various lawyers or occasionally no one at all. Most hearings are so brief that most parties stand behind the table and never sit, since you are supposed to stand anyway when addressing the judge.
Of course, my real reason for being in the courtroom is to watch the pretty girls on the right. The caseworkers for DFS are usually female, and many appear to be fresh recruits in their 20s, not long out of college. These purty young thangs are now called "Permanency Workers" rather than "social workers," which is supposed to emphasize their primary goal of seeking "permanency" for the children under their supervision. I suspect that most of these workers won't be permanent themselves, burning out or losing interest in a couple of years. They will go off to have babies of their own or pursue careers that are less depressing. They will then be replaced by a new batch of fresh-faced, idealistic recruits.
On this day, Judge Hardcastle himself is not present. Instead there is a pro tem, or fill-in judge, by the name of John Sarb. His Honor Sarb substitutes for various judges in both the family and criminal courts. The absence of Hardcastle creates a more relaxed atmosphere than usual something like a Junior High School classroom when there is a substitute teacher. (There are no spitballs or paper airplanes, but I swear I see a bailiff with a jelly bean on his nose trying to impress some children.) Normally, the tone is much more subdued and reverent, and great psychic energy is expended on determining whether Hardcastle is in a "good mood" or "bad mood" that day (a distinction that I am sure the judge would say is imaginary). A Bad Mood Day strikes fear into the hearts of the lawyers and caseworkers. Although there is no such fear with Sarb, there is also a sense that this is not the real judge and that really important decisions will have to wait for the teacher's return. Hardcastle, in all his humanity, is the central sun around which the entire child protective system revolves.
Today, under the fill-in judge, there are about 30 cases on the docket, most of them originating from a single DFS office, the North Neighborhood unit in North Las Vegas. Each of several DFS foster care units has its own assigned day in court, which means that caseworkers usually have to go to court only once per month. They go as a group with their office mates and see all the same people they saw last month, so everyone is friendly with each other. This unit is also assigned to a single Deputy District Attorney. The D.A. for this unit is Ron Cordes (or "Rooster" as I call him, being the sole male on that side of the aisle, who clearly enjoys the lovely hens as much as I do). His job is to act as the lawyer for DFS and the caseworkers, representing their point of view to the Court. Of all the people in the courtroom, he does the most talking, even more than the judge. He is the emcee of the proceedings, introducing each new act.
[Need case example here.]
The court schedule is "stacked," meaning that a lot of hearings are scheduled for the same hour. The Bailiff and D.A. decide the order that cases actually appear based on expediencies of the moment. There is no court stenographer; instead, each hearing is recorded on video tape. For the sake of the cameras, each hearing begins the same: First the D.A. identifies himself and the caseworker beside him, giving their full names and positions, then any lawyers present at the other tables also indentify themselves, give their bar numbers and identify their clients. The D.A. summarizes the status of the case and describes any issues to be resolved. The lawyers then state their position, and the judge starts asking questions.
If there are children present, the judge talks to them first. He asks them some superficial questions in a friendly manner: How are you doing in school? How do you like the place you are living? Hardcastle is much better at this than Sarb is, but the communication is still very limited. This is like the old TV show, "Kids Say the Darndest Things." The children are usually reluctant to talk to the intimidating figure in the pulpit above them, but even on a Bad Mood Day, Hardcastle turns pleasant and tries to draw them out. This is the only contact the judge will usually have with the children he is managing, so I am sure this moment is important to him even if somewhat shallow. The kids will eventually say something funny, or the judge will say something funny in reply, and everyone laughs. If there are any substantive issues to discuss, the judge may then ask the children to leave the courtroom.
This courtroom isn't a particularly adversarial environment, at least among the regulars. The public and private attorneys at the left table make a credible effort to defend the position of their client, usually the parent, who is often incarcerated or otherwise not meeting his case plan. Sometimes, the parent is present, but their position is absurd, like denying that they have ever used drugs when they look like they are high right now. Their lawyer will not actively defend an irrational position; instead, they will keep quiet while the client presents it, then try to steer the proceedings in a more productive direction. Nominally, the client is in charge, and the lawyer must obey, but in practice the lawyer is an independent advisor and de facto psychologist who will try to nudge the client toward reality whenever possible. The lawyer won't repeat an absurdity to the Court and won't do anything to piss off the other people in the courtroom who he has to work with every day. This isn't a battlefield of "guilty" vs. "not guilty," because everyone knows the score. Sometimes, by grace and tact, the lawyer wins concessions for the client one more chance, perhaps. They whisper honest advice to the parent as both of them leave the courtroom. "You've got to stay away from him," I hear one of them say to his female client, referring to a certain rough-looking putative father who is also in the courtroom. Most of the time, however, you can tell that it is all for naught.
[Need case example here.]
At periodic intervals, the proceedings of the court come to a halt for an unscheduled "venting": an emotional outburst or complaint from one of the visiting parties. This could be a birth parent who contends that she has been betrayed by a social worker or a foster parent who wants to adopt but feels that the system isn't moving fast enough. Relatives in the back of the courtroom sometimes pipe in with their own grievances. The frustrated party lets loose with their emotion, which is almost always irrelevant to the issue at hand. The judge listens for a while. He may let the rant proceed to conclusion if it is short-lived, or he may cut it off. Often, he points out to the parent that even if the complaint is true, they have still failed to do their own duty in fulfilling the case plan. For the regulars in the courtroom, the venting is a convenient break when they can relax for a moment, be entertained, or even go out for coffee or to use the restroom. Everyone knows within two seconds whether the rant has any merit, so it is just a matter of waiting it out.
[Need venting example here.]
Most ventings are based on a fundamental misconception about the role of the Court. The person doing the emoting believes that the judge cares about their feelings and that getting him enraged or saddened in sympathy will somehow get them what they want. It is true that everyone in the courtroom, from the bailiff to the judge, has emotional reactions to everything that goes on there. If someone is crying, laughing or yelling, everyone else in the courtroom notices and is affected by it. The actions of the Court, however, are ruled almost exclusively by fact and the technicalities of law. Even the desires of the children play almost no role in the Court's decisions. The judge, for example, will never ask a child whether he wants to go back to his birth parents or stay with his foster parents, because this preference is irrelevent under the law. Any emotional outburst in the courtroom, no matter how subtle or violent, justified or unjustified, almost never changes anything one way or another. It just takes up time on the court docket.
The main purpose of these hearings is to give DFS the authority to continue doing its job. Remember that the children have been forcefully removed from their parents. Because parenthood in America is considered a natural right, the State may take these children, continue to hold them and sever the parental bond only under the specific authority of the Court, which in turn must obey the instructions of written law. DFS may also use the Court to resolve knotty or controversial issues that it has the authority to handle on its own but would rather not take the heat for. The judge, being elected by the people, is the ultimate authority on the issues before him (barring an occasional appeal), but he is also powerless in many things. The judge is bound by the laws of the State of Nevada, which have many flaws, and he is also blind. Apart from the brief interaction he has with the parties in the courtroom, all that he knows about each case is what DFS and the lawyers provide to him in writing or tell him in open court. (Whether communication takes place through any other channel is a touchy subject, but it is not supposed to happen.) He also has no control over the internal operation of DFS. Sometimes, especially on Bad Mood Days, he vents his own frustrations at the people in the courtroom, who may or may not be responsible for the alleged shortcoming.
Some cases are flagged with a "Lack of Reasonable Effort". This is a sort of penalty box which indicates that Hardcastle has previously thought that DFS was not acting in a timely manner. For example, this label may result from unnecessary delays in terminating parental rights or in the finding of an adoptive home. The D.A. is required to remind the judge of the designation during the hearing, and "Lack of Reasonable Effort" is mentioned for a substantial proportion of the cases that pass before me.
Each case is a complex and long-running drama that, by necessity, must be reduced to a few words for the hearing. The simplicity of presentation gives you the illusion that everything is under control. The courtroom is orderly, and the assumptions are simple: Parents on drugs are bad; parents off drugs are good. Parents who fulfill their case plan will get their children back; the court will relinquish its control, and both the parent and child will disappear into the vastness of Las Vegas. Unless the family reenters the system on a new complaint, the caseworkers and lawyers in the courtroom rarely learn what happens next. Everyone assumes since it is the only thing the law allows that the abstinence from drugs will last and will turn these people into adequate parents.
There are times, as I sit in the back of the courtroom listening to one parental excuse after another, when I say to myself, "Thank God for drugs!" Without drug abuse and the license that it give the State to intervene, the children would have no escape from their profoundly dysfunctional families.
One spacy woman with a lot of metalic facial piercings announces to the judge her willingness to enter a "detox" program, while she continues to deny that she has ever used drugs. (Admitting drug use in this courtroom rarely results in further prosecution, only treatment.) The judge points out the inconsistancy to her: You shouldn't join a drug treatment program if you claim to have never done drugs. The caseworker confirms that an earlier drug test was positive for cocaine and that the latest concern is the woman's refusal to do a recently requested test. The woman then launches into an emotional and very convincing explanation for why she didn't do the drug test. Of course, it was the caseworker's fault, and if you had heard only the woman's side, you would believe it, too. The woman's parents, sitting near me, then continue the complaint in a classic communal venting. The caseworker is accused of "discrepencies," and they want her removed from the case. The judge replies that in his experience, changing caseworkers at this stage would simply result in more discrepencies. The rant is allowed to play itself out, and DFS is instructed to move closer to TPR.
I want to draw your attention to an interesting word: alloplastic. In psychology, an alloplastic defense¹ is the tendency to blame outside influences for your own problems. If you fail to do a drug test when requested, it is someone else's fault not yours. You couldn't do it because of the rude way it was requested, the bad attitude of the caseworker, a transient illness, a missed bus, emotional upset, bad luck, or a misallignment of the stars. Even "I just couldn't help myself," is an alloplastic defense because it assumes that you have no control over what you yourself do. Alloplastic people (if I can use the word that way) accept little or no responsibility for their own actions which is something you see a lot of in almost every courtroom.
Standing beside the pierced woman is Jane Femiano, her Special Public Defender. Jane's job is to defend the undefendable: indigent, confused and probably drug-addicted parents who are in the process of losing their kids. I like and admire Jane, although I have never had a chance to speak with her, since she is always in motion. In case after case, she gamely defends her clients, some of whom she has never met or who haven't bothered to contact her in months. I later see her talking to the pierced woman in the hallway after the hearing. She is giving sage advice, which, for the sake of the children, I pray will be ignored.
Jane's role is part of the wonder and mystery of our legal system. The pierced woman is obviously mentally ill, and there would be nothing worse for her children than reunification, with or without drug abuse, yet that is what Jane is ostensibly working toward. Jane is unquestionably Good. She used to be a consumer protection lawyer for the State Attorney General's office, successfully prosecuting some of Las Vegas' many scam artists, so how can she now play such an apparently evil role?
This is complicated. Someone has to assure that reasonable efforts have been made. If Jane gives someone advice, as a friend, and they refuse to take it, then you know that the system has done everything it can, and all of us can feel comfortable with the outcome. I sense that Jane truly cares about her clients but isn't fooled by them. In the hearing for the pierced woman, Jane pushed for a psychological evaluation of her client, which had never been done and I suspect probably never would be. Jane goes through the necessary motions and says the right words, even through she knows that most of her efforts will be ineffective. Competent counsel is necessary so that a case is resolved on its genuine merits and not on the poor self-expression and lack of legal experience of the defendent. In the hallway outside court, you can see Jane trying to connect with her clients emotionally in a way that caseworkers rarely do. In simple terms, she tells them the truth about what is going on, what is likely to happen, and what she thinks they should do, but whether they choose to follow this advice is ultimately up to them and the particular mental illness that possesses them.
Jane gives all of her clients an adequate defense. However, as a public defender in an understaffed department, she can't afford to give them more than that. She does not usually give them a brilliant, aggressive and impassioned defense, which I know she is capable of. That effort, I suspect, is reserved for the rare cases where the parents truly have been wronged or reunification is unquestionably the best outcome. You often wonder how lawyers can defend the undefendable: the rapists, murderers and child abusers of the world. I think Jane provides part of the answer. You treat your client with compassion and realize that they are a victim as much as anyone. You look for some way that you can help them, and you go through the motions and emotions of what is required of you. You don't do a "Clarence Darrow" for them; you just make sure they are fairly treated, and when the court renders its judgement, you console them as best you can. Jane is really good at this consoling part. She sits beside her client on a bench in the hallway and asks them something soothing like, "Is there anything more I can do for you?" Then she pauses and gives them a minute, maybe only 30 seconds, which silently say, "I know what you are going through."
The lawyers who frequent Courtroom 11 are a very small fraternity, and they often change sides. Jane use to work "for" the state and now she works "against" it. Deputy D.A. Rooster Cordes used to work "against" the state as family attorney and now works "for" it. Several other attorneys have switched from "for" to "against" or vice versa, and any one of them could fill the judge's seat. The funny thing is how natural and seamless this feels. It is like a theatre company where actors pick up different roles as the script requires, but they still respond to each other in many subtle and unspoken ways, much as they did in the previous drama. The best lawyers know each other's lines and could easily fill in for them in a pinch (if it were allowed). What is both frightening and fascinating about this is how it blurs the supposedly bright lines between Prosecution, Defense and the Bench. Whether Jane works "for" or "against" is almost inconsequential, because for better or worse, cases are decided by single organic creature.
A case in point is a seemingly routine hearing taking place in front of me now. At the table on the left is a foster father and his private lawyer (formerly with the Attorney General's office). A second attorney is also present, representing a birth mother who is currently in prison. The facts as I deduce them are these: The mother of a young boy, Joseph, was arrested on some substantial charge and will be spending an extended period in prison. She previously agreed to relinquish her parental rights and allow her son to be adopted by a family chosen by DFS, provided she is given a visitation right when she gets out of prison. DFS has found a loving couple to take the child, and the adoption is now just days from completion, but the birth mother is having second thoughts. "My client objects to this adoption," says her lawyer.
It is common for parents who are relinquishing their rights to change their mind at the last minute. In this case, however, the time for second thoughts has long passed. The mother has signed the papers, and the child has already lived with the foster parents for at least the required six months, so the adoption will be going through regardless of how the mother wavers. Only the details of the visitation are still an issue. Nonetheless, this change of heart has raised enough concern with the foster parents that they have engaged a lawyer of their own.
Judge Sarb tries to feel out the situation by asking some cautious questions. "Is visitation the problem?" he asks the mother's lawyer. "Suppose that visitation were increased; would that change your client's position?"
The lawyer replies that, no, visitation is not the issue. "My client objects to this adoption under any circumstance," she says, without further explanation. The fact that a lawyer would use such uncompromising language suggests that her client was also uncompromising and probably used much stronger language.
My only hint to the underlying conflict is a single word: "partner." The foster father says that there is pressure to complete the adoption soon because the family is moving out of state. The sale of their house in Las Vegas is closing today, and his partner is at the house right now seeing to the details. I distinctly hear him say "partner" and not "wife" or "girlfriend," and a moment later, I hear him use the word again. Suddenly, the picture is much clearer.
I imagine the mother pacing back and forth in her jail cell. "Those bastards deceived me!" she yells. "This is not what I agreed to. My son is being adopted by TWO GAY GUYS."
Oh, well. I guess if you are not there to raise the kid yourself due to your own bad decisions, then you have to accept what happens. At least this woman will have a chance to see her child again, which most parents don't get when their rights are terminated. Although I don't have any statistics, I suspect that gay male couples are a significant portion of the adoptive parent pool. How else can they have children? I also suspect that DFS deliberately does not keep statistics about this, since there could be a backlash about it in certain quarters.
This woman may be concerned that if her son is raised by gays, he will turn out to be gay, too. There is no evidence to support this. Studies show² that children raised by homosexual couples are no more likely to become gay in adulthood then those raised by heterosexuals, although they are more accepting of these differences in others. This in itself is a powerful argument for the biological basis of homosexuality. (This principle is further supported by my own difficult "coming out" as a heterosexual. As I recall from my adolescence, my sudden and disturbing interest in the female form had nothing whatsoever to do with what my parents did or didn't teach me. My disease remains uncured to this day, manifesting itself in a wandering eye and occasional unclean thoughts regarding those nicely designed DFS caseworkers.)
The bottom line at the hearing is that the mother's objections will not stop the adoption, although they might delay it by a week or two by slowing down the visitation agreement. The fact that the foster father has nearly won his long adoption battle does not stop him from launching into a mini-rant of his own. It isn't a "venting" as much as a "fussing," in an effete and trivial manner that I associate (in my bigoted way) with gay men. "Joseph was told that he was going to be adopted this week," he whines. "How can I go back and tell him it is going to be delayed? Can you imagine what this boy is going through?"
Actually, I can imagine it. Joseph, who is not present but who I surmise is quite young, probably doesn't care about adoption, except as his foster fathers have built it up to him and defined it as something important. All he cares about is having a nice place to live with people who love and respect him. He doesn't care if his parents are gay or straight, and he has no interest any legal label that adults decide to put on his relationship with them. With time, he will outgrow his parents. He will see them as sometimes effete and trivial and probably rebel against them, but he will always love them as long as they love him. He will always love his mom, too, no matter what bad things she has done, and it is really important that he will be able to see her again. Eventually, they will all learn to get along. I can even envision the mom staying temporarily at the gay couple's house when she gets out of prison, which will make fine material for a sitcom or reality TV show.
[A wrap-up and transition will be added here later.]
Next Chronicle: Juvenile Justice
¹ Google Search for "Alloplastic Defense"
²Lesbian and Gay Parenting: Summary of Research Findings
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