Tim Mantoani

Robert C. Fellmeth

Viewpoints: Jerry Brown neglected children by stripping $11 million from the budget

Published: Sunday, Jun. 22, 2014 - 12:00 am

A provocative title. Hyperbole? An unfair insult? Consider the evidence:

The state has seized 60,000 children now in foster care, adjudicated as having been abused or neglected by unfit parents. The state (we) intervened. Each of these children now has state judges as their legal parents. That means the governor who appoints them is like a powerful grandfather.

The new parent will decide everything about the lives of these children: who cares for them, their school, whom they may see. Every detail of their lives is subject to the court’s jurisdiction. Who needs an attorney more?

That counsel is the voice of the child, addressing the court on her behalf, seeking the optimum placement. Congress requires that each child have an adult to represent them, with one federal published decision (Kenny A. in Georgia) holding that the adult must be an attorney, that such representation is a constitutional right, and that caseloads of more than 100 children are unconstitutional.

Adding to this need is the general secrecy of juvenile dependency court proceedings. It is unlikely that we will know about deficiencies or errors. These children depend upon their advocates.

We at the Children’s Advocacy Institute have operated a clinic in this court in San Diego and monitored them elsewhere for 23 years.

California has some fine dependency judges, who themselves grapple with untenable caseloads. But because of their caseloads and those of their attorneys, we now have one of the most shameful dependency court systems in the nation. The California Supreme Court’s own blue-ribbon commission concluded that caseloads of more than 188 children per attorney are unacceptable, but 250 to 400 – and more – children per attorney is common.

Imagine you are an attorney responsible for all sorts of tasks critical to your 5-year-old client. She wants to go to the first grade where her friends are going. She wants to live with her aunt, who she knows loves her, and to visit her Nana. She has dyslexia. Get the idea?

Now imagine a classroom of 25 kids behind their desks – each is your client. Now imagine a school with a long hall and six classrooms on one side, and another six on the other. Twelve classrooms of children. Your job is not just to educate them, but to make sure the state makes decisions in the interests of each. That is the dirty secret in California that you do not hear about.

We tried to address the problem in a federal lawsuit called Elyse T. v. Tani Cantil-Sakauye two years ago. Sacramento County had 388 kids per dependency-court attorney.

It and other county caseloads are determined by the administrative arm of the California Supreme Court, which arranges the contracts to provide counsel – the same court whose special commission found that more than 188 children per attorney was improper.

We challenged these caseloads in federal court. The 9th U.S. Circuit Court of Appeals disgracefully decided to abdicate by invoking what is called “abstention” – not even considering the matter and instead deferring to their state court colleagues.

That action superseded any feelings for the children affected. But that deferral to the state still confers some scintilla of ethical obligation to follow applicable law. . But that often does not happen.

These children do not vote, contribute to campaigns or lobby. And people running our court system and managing its budget view juvenile courts as Outer Mongolia.

And so we and others who care about these children have worked hard all year. Knowing the state court system would not respond, we took our case to the Assembly and Senate committees and to legislators in both houses. We made our case, and we got a budget bill with $11 million to be allocated this year and $33 million in future years to assure manageable caseloads for dependency court attorneys.

At the $33 million level, this amounts to $550 per child, about 2 percent of their average annual care costs. This small sum assures the basic element of due process and protection.

Then late in the evening on June 11, it was cut – all of it – at the insistence of Gov. Jerry Brown; the final budget approved by the Legislature on June 15 omitted it. We now have the status quo ante. No hearing, no evidence allowed, no appeal – just the likely ignorant doodling with a red pen.

Maybe the billions for the governor’s bullet train has merit. Maybe the money sought for investment in children has more.

These are not somebody else’s children. We elect a governor who appoints their legal parents. They are our children and essentially his grandchildren, not in just an abstract or metaphorical sense. How we treat them is a true test of our family values as a state.

The governor has let the nonfeasance of deficient representation of abused children continue, and affirmatively stopped correction. So we stand by our heading.


Robert C. Fellmeth is Price Professor of Public Interest Law at the University of San Diego School of Law, and director of the Children’s Advocacy Institute.

Read more articles by Robert C. Fellmeth Special to The Bee



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