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D.C.’s Child and Family Services Agency says contractors must gag troubled families—or risk losing funding.
This is the age of the trauma memoir. From Balkan eyewitnesses penning magazine articles about war crimes to semifamous writers churning out autobiographies at age 26, people can’t seem to write enough about their harrowing childhood struggles. And from undergrad lit-crit classes to Oprah’s Book Club, Americans can’t seem to read enough about them, either.
But if readers love learning about childhood pain, at least one realm of the D.C. government is steering clear of the literary fashion. And it’s trying to make sure you do, too: When contractors for D.C.’s Child and Family Service Agency—which looks after 3,000 “at-risk” youngsters and the more than 3,000 abused or neglected District children who have been placed in foster care—opened their mail in early April, they found a distinctly chilly advisory from agency higher-ups mixed in with their bills and magazines.
“The Child and Family Services Agency (CFSA) considers it a breach of contract for any contractor to permit a CFSA client of any age to have contact with the media,” CFSA Deputy Receiver Milton Grady wrote in an April 4 letter to the agency’s 105 family-service providers. “No CFSA client may be interviewed or have any direct contact with the media without written authorization from the CFSA Public Information Officer.”
If this notice wasn’t enough to make contractors follow the government’s lead in dealing with the press, Grady threatened to back it up with force: “Failure to comply with this mandate may be a violation of the confidentiality laws of the District of Columbia or a breach of contract that may be a basis for a termination action.”
Child advocates, agency watchdogs, and contractors themselves are livid—and not because they’re hoping to publish America’s next best-selling memoir. They say that Grady’s request that contractors control the speech of CFSA clients, many of whom are adults, may well violate the First Amendment. Contractors worry that they’ll be forced to choose between upholding clients’ free-speech rights and getting funds to serve them.
It all depends on whom Grady meant when he wrote “a CFSA client of any age.”
“If this memo is to say that foster parents and older teenagers are to be prevented from talking to the press, as far as I’m concerned that would be an illegal effort on the part of the agency, and I hope that’s not what they meant,” says Art Spitzer, director of the D.C. chapter of the American Civil Liberties Union (ACLU).
It was the ACLU that filed LaShawn A. vs. Dixon, the 1989 class-action lawsuit on behalf of abused and neglected clients of the city’s Child and Family Services Division. U.S. District Court Judge Thomas Hogan found that the city had “deprived the children in the District’s foster care of their constitutionally protected liberty interests.” When the division repeatedly failed to make court-ordered improvements, Hogan appointed a receiver to run the troubled agency in 1995, and it was renamed the Child and Family Services Agency. Since then, CFSA has contracted out the bulk of its counseling, case management, and group-home services to independent contractors such as the Columbia Heights-Shaw Family Support Collaborative and the Fedora Center.
It’s no surprise to Spitzer that CFSA—the direct descendant of the defendant in LaShawn—is still having trouble finding the line when it comes to constitutional rights. “To the extent that we’re talking about small kids, that’s a different question,” says Spitzer. “If the child is 5 or 6, there is really a question about how much decision-making they should be allowed. But if you’re talking about a teenager, they have the right to make that decision on their own, and [CFSA] should not be threatening the contractors.”
In fact, CFSA’s clients include birth parents, abused and neglected children, young adults, and foster parents. Some of them are already bound by law: Confidentiality statutes prohibit foster parents from speaking about the specific children for whom they are caring—though they can say what they like about their own experiences and the foster-care system in general. But birth parents are legally free to speak about anything they want. Either way, advocates are outraged that a contractor could get cut off because a foster parent mouthed off in print about a late check from CFSA.
Older children in CFSA care, say legal experts, should also be free to make their own speech decisions. “Certainly there are mature minors who have every right if they so desire to speak to the press.The concern which is legitimately expressed here is that any contract agencies are not legally authorized to consent on behalf of the children. Only the agency is authorized,” says Eric Thompson of New York-based Children’s Rights Inc., who was the co-counsel in LaShawn. But the letter does not make that distinction. “This is too broad. It’s unfortunate—I don’t think the intent was what it may appear to be.”
But CFSA spokesperson Karen Kushner says that the letter means exactly what it says. “Foster parents are not permitted to speak to the media,” she says. The same holds for abused and neglected children. “It’s a matter of age of consent. Kids and young adults are in the foster-care system up until the age of 21. After age 18, they are permitted to make that decision [to talk to the press].”
Asked if mature minors, such as 17-year-olds, could choose for themselves to speak with the press if they were unhappy with their foster care, Kushner has a simple answer: “No.”
“If I’m a provider and I find out that I have a 17-year-old who wants to talk to the media, [the youngster] has to contact Child and Family Services. Once the contractor becomes aware of it, they are required to let Child and Family Services know what is going on,” says Kushner.
The agency, insists CFSA Assistant General Counsel Sarah Kaplan, maintains a parent-child relationship with the minors in its care, and it has both the legal authority and the moral responsibility to decide for them. “We don’t believe that is” illegal, says Kaplan of the letter. Grady’s statement “was consistent with the requirements of D.C. and federal law, and they raise no constitutional implications.”
Some contractors, though, are busily raising just those implications. “I think it’s a violation of freedom of speech,” says Fred Taylor, executive director of CFSA contractor For Love of Children, located on 14th Street NW. “I think you’ve got to protect client confidential information, but we’ve also got to know where things break down and how the breakdown can be repaired.”
CFSA’s anxiety can be traced back to a well-publicized spot: The gravestone of 23-month-old Brianna Blackmond. Tom Wells, executive director of the Consortium for Child Welfare, suspects that the negative publicity caused by the young CFSA charge’s January death, shortly after she was returned to her mother from foster care by a Superior Court judge, spurred the agency to rein in contact with the press.
“They want to hide from everybody,” says Wells. “I think they’re under siege….I don’t think they thought this letter through at all.”
Spitzer says he hopes this dispute can be resolved amicably, without legal action, and plans to call CFSA’s leader to help them reconcile their circle-the-wagons mentality with the First Amendment. And Mark Cooper, executive director of CFSA contractor Lutheran Social Services National Capital Area, says he expects contractors to take a pragmatic approach to the memorandum.
“Basically, we’re not in disagreement with [Grady’s] statement, because that would be true in any circumstances,” Cooper says of the memo’s reminder that contractors can’t make decisions for—or speak about—their clients. However, “if a client wanted to speak on their own, that would be something we couldn’t prohibit. That’s freedom of speech.”
As for the adult CFSA clients—whether biological parents, young adults, or foster parents—Cooper doesn’t see his organization telling them what to do. “We don’t have a lot of control over folks like that,” he says. “We would not dictate to our foster parents. We wouldn’t get far anyways, I’m sure.” CP