<DOC>
[107th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:76884.wais]
REFORM OF THE FAMILY DIVISION OF THE DISTRICT OF COLUMBIA SUPERIOR
COURT--IMPROVING SERVICES TO FAMILIES AND CHILDREN
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE DISTRICT OF COLUMBIA
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
JUNE 26, 2001
__________
Serial No. 107-30
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
_______
U.S. GOVERNMENT PRINTING OFFICE
76-884 WASHINGTON : 2001
____________________________________________________________________________
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COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
ILEANA ROS-LEHTINEN, Florida EDOLPHUS TOWNS, New York
JOHN M. McHUGH, New York PAUL E. KANJORSKI, Pennsylvania
STEPHEN HORN, California PATSY T. MINK, Hawaii
JOHN L. MICA, Florida CAROLYN B. MALONEY, New York
THOMAS M. DAVIS, Virginia ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
JOE SCARBOROUGH, Florida ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
BOB BARR, Georgia ROD R. BLAGOJEVICH, Illinois
DAN MILLER, Florida DANNY K. DAVIS, Illinois
DOUG OSE, California JOHN F. TIERNEY, Massachusetts
RON LEWIS, Kentucky JIM TURNER, Texas
JO ANN DAVIS, Virginia THOMAS H. ALLEN, Maine
TODD RUSSELL PLATTS, Pennsylvania JANICE D. SCHAKOWSKY, Illinois
DAVE WELDON, Florida WM. LACY CLAY, Missouri
CHRIS CANNON, Utah DIANE E. WATSON, California
ADAM H. PUTNAM, Florida ------ ------
C.L. ``BUTCH'' OTTER, Idaho ------
EDWARD L. SCHROCK, Virginia BERNARD SANDERS, Vermont
JOHN J. DUNCAN, Jr., Tennessee (Independent)
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
James C. Wilson, Chief Counsel
Robert A. Briggs, Chief Clerk
Phil Schiliro, Minority Staff Director
Subcommittee on the District of Columbia
CONSTANCE A. MORELLA, Maryland, Chairman
TODD RUSSELL PLATTS, Pennsylvania ELEANOR HOLMES NORTON, Washington,
THOMAS M. DAVIS, Virginia, DC
JOE SCARBOROUGH, Florida ------ ------
------ ------
Ex Officio
DAN BURTON, Indiana HENRY A. WAXMAN, California
Russell Smith, Staff Director
Heea Vazirani-Fales, Counsel
Matthew Batt, Clerk
Jon Bouker, Minority Counsel
C O N T E N T S
----------
Page
Hearing held on June 26, 2001.................................... 1
Statement of:
DeLay, Hon. Tom, Majority Whip, U.S. House of Representatives 91
King, Chief Judge Rufus, III, Superior Court of the District
of Columbia; Kathy Patterson, chairperson, Committee on the
Judiciary, D.C. City Council; Olivia A. Golden, director,
Child and Family Services Agency; Judith Meltzer, Center
for the Study of Social Policy; and F. Scott McCown, Chief
District Judge, Travis County Court House.................. 16
Murphy, Sister Josephine, St. Ann's Infant and Maternity
Home; Stephen D. Harlan, chairman of the board, Council for
Court Excellence; Tommy Wells, executive director,
Consortium for Child Welfare; and Margaret J. McKinney,
Family Law Section, District of Columbia Bar............... 157
Letters, statements, etc., submitted for the record by:
Davis, Hon. Thomas M., a Representative in Congress from the
State of Virginia, prepared statement of................... 11
DeLay, Hon. Tom, Majority Whip, U.S. House of
Representatives, prepared statement of..................... 94
Golden, Olivia A., director, Child and Family Services
Agency, prepared statement of.............................. 84
Harlan, Stephen D., chairman of the board, Council for Court
Excellence:
March 2001 report on site visits......................... 166
Memorandum dated July 16, 2001........................... 220
Prepared statement of.................................... 181
King, Chief Judge Rufus, III, Superior Court of the District
of Columbia:
Letter dated September 12, 2001.......................... 152
Prepared statement of.................................... 19
McCown, F. Scott, Chief District Judge, Travis County Court
House, prepared statement of............................... 113
McKinney, Margaret J., Family Law Section, District of
Columbia Bar, prepared statement of........................ 191
Meltzer, Judith, Center for the Study of Social Policy,
prepared statement of...................................... 106
Morella, Hon. Constance A., a Representative in Congress from
the State of Maryland, prepared statement of............... 4
Murphy, Sister Josephine, St. Ann's Infant and Maternity
Home, prepared statement of................................ 160
Norton, Hon. Eleanor Holmes, a Delegate in Congress from the
District of Columbia, prepared statement of................ 8
Patterson, Kathy, chairperson, Committee on the Judiciary,
D.C. City Council, prepared statement of................... 74
Wells, Tommy, executive director, Consortium for Child
Welfare, prepared statement of............................. 213
REFORM OF THE FAMILY DIVISION OF THE DISTRICT OF COLUMBIA SUPERIOR
COURT--IMPROVING SERVICES TO FAMILIES AND CHILDREN
----------
TUESDAY, JUNE 26, 2001
House of Representatives,
Subcommittee on the District of Columbia,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 12:07 p.m., in
room 2154, Rayburn House Office Building, Hon. Constance A.
Morella (chairman of the subcommittee) presiding.
Present: Representatives Morella, Norton, and Davis.
Staff present: Russell Smith, staff director; Heea
Vazirani-Fales, counsel; Robert White, communications director;
Matthew Batt, clerk; Jon Bouker, minority counsel; and Jean
Gosa, minority assistant clerk.
Mrs. Morella. Good morning. It is a pleasure to welcome you
to the District of Columbia Subcommittee's hearing on the
reform of the family division of the District of Columbia
Superior Court, improving services to families and children.
I think we can all agree that children are our Nation's
most important and valuable asset. Our witnesses today are here
because of their commitment to the children in our Nation's
Capital. I want to thank them for their dedication and for
sharing their experiences and suggestions with us.
I recognize that each witness will present his or her
evaluation of the present situation from his or her own frame
of reference. This subcommittee will evaluate the testimony and
the information during the question and answer exchange in
order to formulate final legislation.
Mr. DeLay will be joining us very soon. In fact, that was
why we started our hearing at noon, so you could postpone your
lunch, and when he comes I will recognize him to speak.
Mr. Davis will be joining us and, of course, we have our
ranking member, Congresswoman Eleanor Holmes Norton, and I want
to thank them for the dedicated work on this draft legislation.
I particularly want to welcome Mr. DeLay when he arrives,
the majority whip, who has been very instrumental in keeping
our focus on the issue and has used his offices to bring
together all participants to craft the discussion draft on the
Family Court.
Indeed, we are privileged today to have Chief Justice Rufus
King, chief judge of the D.C. Superior Court; the Honorable
Kathy Patterson, who is the Chair of the Committee on the
Judiciary of the D.C. City Council; Olivia Golden, who is the
director of Child and Family Services Agency; Judith Meltzer
from the Center for the Study of Social Policy; the Honorable
F. Scott McCown, the civil district court, Travis County, TX;
Sister Josephine Murphy of St. Ann's Infant and Maternity Home;
Stephen Harlan, chairman of the board, Council for Court
Excellence; Margaret McKinney, family law section of the
District of Columbia Bar; and Tommy Wells, executive director,
the Consortium for Child Welfare. So you can see we have a very
prominent, distinguished group of people who will be testifying
before us today.
I thought I'd give an opening statement by reminding us of
the fact that on the morning of January 6, 2000, doctors at
Children's Hospital declared 23-month-old Brianna Blackman
dead, the victim of severe head injuries. According to the
grand jury that handed out 10 indictments against her mother
and godmother, the girl's death was the culmination of 2 weeks
of what can only be described as torture. Brianna was allegedly
beaten with a belt, repeatedly punched, ultimately had her
hands cuffed and her head smashed against a hard surface.
Since that tragic day, a sweet, smiling Brianna Blackman
has occasionally gazed at us from the front pages of the
newspaper, a poignant reminder of the fatal shortcomings in the
District of Columbia's child welfare system.
Miscommunication among city agencies, lawyers, and judges
continues to be a problem. A heavy case load for judges and
case workers--the family division disposed of less than half of
its cases last year, for example--is another obstacle. The
present structure of the family division, where judges rotate
in and out every year or two, is not productive. And today we
are going to do our part to look at this system and to try to
reform it.
As is often the case in the Nation's Capital,
responsibility is bifurcated. Congress has funding
responsibility for the courts, while the city has control over
the Child and Family Services Agency and other parts of the
child welfare network.
I know Mayor Williams and the Council take these issues
very seriously and are working to improve the city's side of
the equation, and we have a lady here, Olivia Golden, who is
CFSA's new director, who will tell us about how those efforts
are proceeding.
Today's hearing, of course, will focus on our efforts in
Congress to strengthen the performance of the District's Family
Court Division. As some of you may know, my husband and I have
raised nine children, including the six children of my late
sister. My nieces and nephews ranged from 9 to 15 years of age
when their mother died, but they were fortunate and we were
fortunate in that we have a supportive, loving family and they
had one they could turn to, so therefore I understand the
importance of safety, security, and stability in a child's
life.
The 11,000 children served each year by the Child and
Family Services Agency and the 1,500 or so whose abuse and
neglect cases end up in the Family Division aren't as lucky.
These are children with parents who are addicted to drugs or
mentally ill, children who in some cases suffer physical or
sexual abuse to a degree far worse than most of us can even
imagine. And for many of these children the case workers and
the court system are their last resort.
We, as a society, have an obligation to lend a helping
hand. The reforms that we will discuss today embodied in the
District of Columbia Family Court Act of 2001, developed by
Majority Whip DeLay, Congresswoman Norton, Congressman Davis,
and myself, effect positive and needed change in the way the
court system handles the fortunes of our most vulnerable
residents.
When he arrives, our first witness, Tom DeLay, will discuss
why the legislation is before us, but I thought I would
highlight a few of the important provisions.
Under our plan, the work of judges would be supported by
judge magistrates, who would handle many aspects of cases. And,
by the use of alternative dispute resolution and mediation, we
would bring in a special master to help reduce the backlog.
Nearly 4,500 abuse and neglect cases were pending as of
December 31st. The court would adhere to the ``one family/one
judge'' approach, because families really come before the court
just once, and we want our judges to be familiar with every
aspect of a child's case.
We are also hopeful that the judges who serve on the family
bench want to be there, who see family court as an opportunity
and not an assignment.
And, probably most importantly, judges would sit on the
Family Court for fixed terms of at least 3 years, and they
would continue to receive training while sitting on the bench.
Formalized training in family matters is important, but there's
no substitute for on-the-job experience judges acquire while
presiding over these complicated cases.
In short, these changes represent the first major overhaul
of the District of Columbia's Family Division in three decades.
No longer will we have a 1970's court structure to contend with
the burgeoning 21st century problems, and no longer will
Congress tolerate a court system that too often fails its most
desperate citizens.
I am now pleased to recognize for an opening statement the
ranking member of this subcommittee, Congresswoman Eleanor
Holmes Norton.
[The prepared statement of Hon. Constance A. Morella
follows:]
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Ms. Norton. Thank you very much, Representative Morella.
Our Chair, Congresswoman Connie Morella, has our thanks for
initiating this hearing on the first overhaul of our Family
Court since 1970, when it was upgraded to be a part of the
Superior Court of the District of Columbia. The old Family
Court, then called ``Juvenile Court,'' was a stand-alone court
that had become a place apart--in effect, a ghetto court--to
which the city's most troubled children and families were sent
away from the ``real judicial system.''
Out of sight left children and families out of mind until
the Juvenile Court was abolished as hopelessly ineffective and
poorly funded.
All agree that the Family Division has proved to be a vast
improvement over the Juvenile Court, despite the increasing
number of abused and neglected children, troubled juveniles,
and families in crisis. However, no institution should go a
full 30 years without a close examination of its strengths and
weaknesses. The Family Division needs examination and revision
after a generation to be able to continue to meet its difficult
mission. The Division increasingly is taxed by intractable
societal problems and, in addition, must depend on an outside
agency, the District's Child and Family Services Agency, which
until recently had been adjudged so dysfunctional that it was
taken over by the Federal courts and placed in a receivership.
The need to update the Family Division might not have been
a priority were it not for the tragic death of the infant
Brianna Blackman, who was allowed to return to her troubled
mother without a hearing after it was alleged that lawyers
representing all the parties, social workers, and the guardians
ad litem all certified that the child should be returned.
My staff and I commenced a detailed investigation of best
practices of Family Courts and Family Divisions here and around
the country in preparation for writing a bill. Of course, the
City Council, which is far more familiar with the children and
families of the city than we in Congress, is best qualified to
write a bill, but Congress withheld jurisdiction over D.C.
courts from the city even after the Home Rule Act was enacted
in 1973.
Majority Whip Tom DeLay, who has shown an admirable
interest in our children and the court, also began to write a
bill. Soon we joined and worked closely and collegially
together to produce a single bill which we then sent to the
city.
I appreciate the time and personal effort Mr. DeLay put
into the bill, including lengthy meetings with judges and
members of the bar, and particularly the excellent work of
Cassie Bevan, senior policy advisor for Mr. DeLay, who worked
closely with John Bouker, my counsel and legislative director.
May I say, as well, that I appreciate the strong support
Mr. DeLay has given to our effort to return Child and Family
Services to the District, and the Federal District Court has
now ordered the agency returned to the District.
Despite many hours of work on this bill, I need to hear
from city officials before I have confidence in our work, and I
believe that this committee should not proceed without a
resolution from the Council.
Our bill incorporates the best practices from successful,
independent family courts and family courts that are integrated
into general jurisdiction courts. These courts have in common
an ample number of judges; magistrate judges; matters retained
in specialized Family Court until resolution; one family/one
judge; alternative and dispute resolution and mediation, often
far better than formal adversarial proceedings in many family
matters; and required regular training for judges and court
personnel.
As important as our bill is, the major problem of children
and families in the District is not the court, but the Child
and Family Services Agency. The court needs more resources and
it needs modernization. CFSA needs a complete makeover; yet,
after 6 years in a Federal Court receivership, CFSA is
returning to the District largely because the receivership
failed, not because that agency has been revitalized.
No matter what we achieve with our bill, children and
families are unlikely to notice much difference in their lives
unless CFSA is fundamentally changed. Courts are the back end
of the process when all else has failed, the last resort when
people must be compelled to do what they are required to do.
Our bill assures that the city has a full-time staff
liaison onsite at the court, but inevitably the court will be
handicapped by the condition of the CFSA.
In the first years of the agency's return to the District,
assuring that the CFSA and the new Family Court of the Superior
Court are seamless in their response to our children and
families is a formidable challenge for both the city and the
court. Because the court has generally been well-run and
responsive to children and families, I believe that, with new
resources and both added and updated functions, the court can
do the job. The city's challenge to both reform the CFSA and
align the agency with the court is more formidable. However,
the Mayor's careful work in management reform and
accountability and the Council's diligent oversight encourages
optimism.
I believe we have much to learn from today's witnesses, who
have been on the ground with the children and families of the
city, and with the issues the court tackles every day, and, of
course, with the court, itself. I welcome each of these
witnesses and thank them in advance for their preparation and
their testimony.
Mrs. Morella. Thank you, Ms. Norton.
[The prepared statement of Hon. Eleanor Holmes Norton
follows:]
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Mrs. Morella. We are now going to proceed with our second
panel in the interest of time, and so I would ask Chief Judge
Rufus King, the Honorable Kathy Patterson, Olivia Golden,
Judith Meltzer, Judge F. Scott McCown to step forward.
Before you sit down, it is the policy of this committee and
all its subcommittees to swear in those who will be testifying,
so please raise your right hands.
[Witnesses sworn.]
Mrs. Morella. Thank you. The record will demonstrate an
affirmative response.
We have been joined by Congressman Tom Davis, who was my
predecessor as chair of this subcommittee and has, as I
mentioned in my opening statement, been very much involved also
in the deliberations to come up with the Family Division and
the draft of the bill that we have before us.
Again in the interest of time our procedure is
traditionally to allow each person who testifies about 5
minutes for the testimony, with the knowledge that the
testimony in its entirety will be included in the record.
Incidentally, before I introduce Chief Judge King, let me
ask Congressman Davis if he would like to make an opening
statement.
Mr. Davis. I think what I would ask, I have a lengthy
statement that I'd just ask unanimous consent to be put into
the record so we can move ahead.
[The prepared statement of Hon. Thomas M. Davis follows:]
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Mrs. Morella. Without objection, so ordered, and thank you.
Chief Judge King?
STATEMENTS OF CHIEF JUDGE RUFUS KING III, SUPERIOR COURT OF THE
DISTRICT OF COLUMBIA; KATHY PATTERSON, CHAIRPERSON, COMMITTEE
ON THE JUDICIARY, D.C. CITY COUNCIL; OLIVIA A. GOLDEN,
DIRECTOR, CHILD AND FAMILY SERVICES AGENCY; JUDITH MELTZER,
CENTER FOR THE STUDY OF SOCIAL POLICY; AND F. SCOTT MCCOWN,
CHIEF DISTRICT JUDGE, TRAVIS COUNTY COURT HOUSE
Judge King. Thank you, Madam Chairman, Congresswoman
Norton, Congressman Davis, and members of the subcommittee.
Thank you for calling this hearing to discuss proposals you
have been working on regarding the Superior Court and the
court's plan for reform of the Family Division. We share a
commitment to safeguarding the safety and improving the quality
of life of abused and neglected children.
I have submitted written testimony, with copies of the
court's plan and the draft legislation, with the court's
comments attached for inclusion in the written record. I will
discuss briefly some of the principal issues and the court's
position on them in these remarks.
At my request, the presiding judge--that's Judge Walton--
and the deputy presiding judge, Judge Josey-Herring, both of
whom are here today, along with a working group of hearing
commissioners, staff in the Family Division, and other
stakeholders, have produced a plan for reforming the Family
Division. That plan is very similar to the legislation you are
considering and reflects a very constructive dialog that you,
Representative Norton, Representative DeLay, Senator DeWine,
and others have afforded us.
In addition to reforms within the court, we have been
strengthening our working relationships with the District of
Columbia Child and Family Services Agency and Mayor Williams,
as he assumes control of that agency. In particular, we have
welcomed the appointment of Dr. Olivia Golden, and I appreciate
her willingness to set regular working meetings with us to
coordinate our respective efforts in behalf of children.
I would also like to express my appreciation for the
constructive working relationship Chairman Linda Crop and
Council Member Kathy Patterson of the City Council have
accorded the court.
Turning to the reform measures discussed in Congress and
the court's plan, a few principles are of primary importance to
all of us working on these issues. I will address areas where
there are differences in the interest of time, but with great
appreciation for the many areas where we agree.
I, of course, appreciate the apparent consensus on allowing
the Unified Family Court to remain a part of the Superior
Court, the highest court of general jurisdiction in the
District of Columbia, as is consistent with the position taken
by the American Bar Association.
As to judicial terms in the Family Court, the court
believes judges should serve 3 year, extendable terms in the
Family Court. We need to attract qualified, dedicated judges,
both current judges and lawyers who will be nominated to serve
in the new Family Court. Three-year, extendable terms will
allow us to do that, while permitting the development of
expertise and continuity of attention to cases, especially if
the terms are staggered so that there is always a complement of
experienced judges in the Family Division.
I also believe that the few true dedicated leaders who will
make Family Court their career work will be more likely to
emerge in the context of extendable terms than if forced to
choose a lengthy initial term.
I am aware that different jurisdictions have chosen
different approaches, but, after careful consultation with
various stakeholders, we believe this is the correct one for
the District of Columbia.
Flexibility--this issue is one that involves trust on both
sides. We have common goals for the Family Court and generally
share a common view of how it should operate, but to manage the
court effectively any chief judge will need some flexibility to
address changing circumstances in the community and in the
court. Among other foreseeable contingencies when flexibility
would be needed are the potential service of senior judges,
occasions when judges experience illness or disability, and
significant changes in the incoming cases, the mix of incoming
cases.
As to magistrate judges, the draft legislation would set up
two classes of limited jurisdiction judicial officer: the
current hearing commissioners and the new magistrate judges
within the Family Court.
In addition to the personnel issues that are involved in
having two classes of judicial officers with similar, but not
identical authority, this system would pose difficulties in
managing different case loads in our court. We would urge the
designation of a single category of magistrate judge with
uniform powers.
Turning to the current case load, as we have discussed
before, there are approximately 4,500 children currently in the
system whose cases remain under review after 18 months or more.
Let me tell you about some of them.
A child of 15 was recently hospitalized in another State
after 5 years of sexual abuse in her adoptive home. She endured
this without reporting it in order to protect her younger
sister, who was not being abused.
A child who is self-mutilating and suicidal after years of
abuse and neglect will need psychiatric treatment and
hospitalization for years.
A boy whose mother burned him during a cocaine binge
remains hospitalized with crippling physical and emotional
injuries.
A teen has set fire to every foster home she has been
placed in.
Another teen who keeps absconding from placements calls
each time to tell the judge, who then talks her back into care
and on to her much-needed medication.
We believe reassigning all of these cases of the existing
cases would overwhelm the new Family Court and would disrupt
the lives of some of the children involved. While some of the
cases surely could go, and should go, to the Family Court and
to the new judges, others should not, because they are near
permanency or because of the relative effectiveness of the
current assignment in addressing the child's needs.
We do fully agree with assigning all incoming cases within
the Family Court, subject to very limited special
circumstances.
Last, but, of course, not least, many of the reforms
require additional resources. I realize that this is an
authorizing, not appropriating, subcommittee, but I urge you to
talk to your colleagues on the Appropriations Committee and let
them know how urgent our need is. We can make, and are making,
some of these changes without additional resources, and
together we have developed a plan that will better serve the
children of the District of Columbia, but to do most of it we
need the funding for judicial officers and support staff, for
courtrooms and other facilities, and for an integrated justice
information system, so that we can better meet the goal of one
family/one judge.
I re-emphasize the best reform will result from a
collaboration that draws heavily on the interest and thought of
those who will ultimately have to serve under whatever Family
Court is finally enacted. Such a reform can best be achieved
with a real effort to build trust among the Congress, the
court, and the Child and Family Services Agency.
We hope that we can work to achieve a level of trust that
will allow for sufficient flexibility in the final legislation,
so that the Family Court can be operated according to best
court management principles. Of course, Congress, acting both
directly and through the annual budget process, will always
retain the oversight role to ensure that reforms are
effectively carried out.
Madam Chairwoman, Congresswoman Norton, and Congressman
Davis, thank you for the opportunity to talk about the work of
the court's Family Division and plans to improve it. I would be
happy to answer any questions you have.
Mrs. Morella. Thank you, Chief Judge King, and thank you
for your work all along the way in bringing us to this point
and the improvements that you've already initiated, have put
into operation.
[The prepared statement of Judge King follows:]
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Mrs. Morella. Now it is a pleasure to recognize
Councilwoman Patterson.
Ms. Patterson. Thank you very much. Thank you,
Congresswoman Morella, Ms. Norton, Mr. Davis, for the
opportunity to----
Mrs. Morella. I think you need to put that closer.
Ms. Patterson. Thank you.
I'm Kathy Patterson, the ward three representative to the
D.C. Council and the current chairperson of the Council's
Committee on the Judiciary.
The Council shares your concern about how the court system
deals with the problems faced by the city's most vulnerable
residents, including children who have been abused or
neglected. The Council as a body has not yet spoken on these
issues. My testimony does, however, reflect my views and those
of Chairman Cropp, who is chairing a legislative meeting right
now.
I'm pleased to share this panel with Judge King. Under his
leadership, the Superior Court has made good progress in
addressing concerns raised by the General Accounting Office and
others on this issue and on other management issues facing the
court. I would respectfully ask the subcommittee to consider
carefully the locally generated reform plan and the views of
the elected leadership, the Mayor and the Council.
The Council is planning hearings in September on
legislation that would vest control over the selection of local
judges in the Mayor and the Council. The residents of this city
deserve to have a voice in the selection of officials from all
branches of government, and this principle is best furthered by
permitting the Mayor and the Council to select the judges who
will serve on local courts.
Principles of home rule would also suggest that, on issues
related to the internal functioning of the Superior Court,
Congress should pay particular attention to the local views. I,
therefore, do appreciate this opportunity today.
I am very grateful for the progress made thus far on this
issue under the leadership of Ms. Norton and others on this
committee. Much of the initial legislative proposals proposed
by Congressman DeLay and others have been strengthened after
consultation with local authorities and with this committee,
and now reflect a consensus on many issues on how best to
implement and enhance Family Court to preside over these
important cases.
The Council recognizes the need to recruit judicial
candidates who are experienced and interested in family law to
staff the Family Court Division of Superior Court. With a
current vacancy on the Judicial Nominating Commission, the
Council has an opportunity to assist in this effort by
selecting for that commission someone who has a background in
family law and can effectively evaluate the family law
credentials of judicial applicants.
Along these lines, I believe that a term of 3 years rather
than an alternative minimum of 5 years will best serve to
attract qualified and dedicated judicial candidates to Family
Court. The 3-year term is supported by respected groups such as
the Council for Court Excellence, and strikes a good balance
between ensuring continuity and experience of judges and
staving off burnout.
Chairman Cropp and I support many of the other proposals
that incorporate widely accepted best practices for effectively
handling Family Court operations. These include: enhanced
training, modernization of the computer system to ensure better
tracking, and an increased focus on the use of alternative
dispute resolution.
We also join in concerns expressed by the Mayor's office
and the Council for Court Excellence, as well as the court,
that creating a three-tiered judicial system by establishing
magistrate judges only in the Family Court Division of Superior
Court may undermine the effective functioning of all divisions
of the court.
The different titles and duties may preclude qualified
Superior Court hearing commissioners from handling matters in
Family Court as needed on an emergency basis, and may limit the
opportunity of Family Court magistrates to rotate into Superior
Court assignments.
We support the proposal to redesignate Superior Court
hearing commissioners as magistrate judges to overcome this
problem.
Some aspects of the proposed legislation may be contrary to
the ability of the Superior Court to respond effectively and
flexibly to challenges posed by unanticipated changes in the
environment in the District. For example, the designation of a
number of Family Court judges that is fixed at the time of the
chief judge's transition plan could unnecessarily limit the
ability of the court to respond to changing circumstances, and
I would recommend continuing discussion on this point.
There are some special challenges that will occur during
the transition period. I recognize the importance of ensuring
that matters within the jurisdiction of the Family Court are
handled by judges who are currently sitting in the Family
Court, and also recognize the importance of expediting the
review of the approximately 4,500 cases that have been pending
and are still under review.
While in some circumstances there may be legitimate reasons
for the lack of a final decision and the need for further court
oversight, in other situations it is likely that some of these
cases require no further action and simply need to be closed.
I support the proposals for immediate review of the abuse
and neglect matters currently pending either by a special
master or by several magistrates appointed on an expedited
basis, as well as by the judges currently assigned to these
cases, to determine how many of these cases need to remain open
and whether they should be transferred to Family Court
immediately or remain with the currently assigned judge.
We believe that the court's proposed restructuring into
teams should minimize the turnover of participants in cases
such as this, and that over time this would obviate the
concern.
During a period of transition to the new structure,
however, it may make sense to permit judges to maintain
continuity in certain exceptional cases pending before them.
I do appreciate that some judges believe they have served
as the only continuous supportive presence in the life of a
troubled child. It may be the most viable practical solution
over the short term, given the large number of pending cases
which cannot realistically be transferred simultaneously for
handling to the new Family Court staff.
Over time I agree that the strong presumption should be in
force that family matters remain in Family Court and recommend
that this be implemented through a much more narrow
interpretation of the exceptional circumstances that permit
retention of a case by a judge who leaves the Family Court.
In order for the improvements anticipated by the proposed
reforms to be achieved, it is imperative that the Congress
fully fund additions to personnel, technological requirements,
and physical plant, and support our enhancements to the budgets
for other D.C. agencies. The continued commitment of resources
is essential to fulfilling the promise of reforms.
Finally, and to Ms. Norton's point about responsibilities
at the local level, I would just note that, in my capacity as
chairman of the committee with oversight responsibility for the
Metropolitan Police Department, I will be chairing a hearing
Thursday on the role and responsibilities of the Police
Department in investigating child fatalities and child abuse
and on the front end of preventing harm to children through
community policing.
Thank you very much.
Mrs. Morella. Thank you, Councilwoman Patterson. I hope you
will share with us the results of that meeting that you are
going to be chairing. It's very important.
[The prepared statement of Ms. Patterson follows:]
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Mrs. Morella. Welcome aboard, Dr. Golden. We are delighted
to have you here today and to listen to your comments.
Ms. Golden. Thank you very much. Good afternoon, Chairwoman
Morella, Congresswoman Norton, and other members on the
Subcommittee of the District of Columbia. My name is Olivia
Golden, and I am the newly appointed director of the Child and
Family Services Agency [CFSA]. I am most appreciative of this
opportunity to testify on behalf of Mayor Williams. I would
like to acknowledge the commitment of the subcommittee and of
Congressman Delay to working with the District on this
important legislative proposal, and I want to express special
appreciation to Judge King and to Judge Walton for their
commitment to working closely with us at CFSA.
The Mayor strongly supports the discussion draft
legislation of May 21, 2001, because it represents an important
step toward his key goal of support for the District's most
vulnerable children. In order to keep children safe and enable
children to life in loving, permanent families, all elements of
the District's child welfare system--the CFSA, the Office of
Corporation Counsel, the Metropolitan Police Department,
nonprofit and community agencies, and the Superior Court--all
must work together on behalf of children. The Superior Court is
an integral part of this system at each stage of the child
welfare process. It makes the initial determination regarding
abuse and neglect, conducts review hearings, adjudicates
adoption proceedings, and renders the ultimate decision about
whether to return a child to the home; thus, the work of the
court must be effectively and closely synchronized with the
work of other participants in the child welfare system.
The discussion draft accomplishes this goal by including
key steps to strengthen one part of the child welfare system,
the Superior Court, in a way that supports the reform efforts
in the other parts, as Representative Norton highlighted,
creating an extraordinary opportunity to change the system, as
a whole, in a way that benefits children.
We have this extraordinary opportunity today because the
Williams administration, with the help of many people in this
room, has addressed over the last 12 months some of the
critical systemic deficits that have impeded the performance of
the child welfare system. For example, because of the
commitment of the Mayor and the Council and with the support of
the Congress, CFSA is now funded at a level that should allow
us to hire sufficient social workers over the coming months,
and to meet other critical service needs. And under the Mayor's
auspices, as Representative Norton highlighted, we were able to
work cooperatively with the stakeholders in the child welfare
class action to successfully transition out of Federal Court
receivership.
We were also able to enact legislation that created CFSA
for the first time as a unified, Cabinet-level agency with
authority over both abuse and neglect.
Mayor Williams regained both operating and fiscal control
over CFSA on June 16, 2001, which means I am now in my 9th day
as director of the agency under the city.
The discussion draft represents an extremely important next
step, building on these reforms to reform the entire child
welfare system, to support the best interests of children, and
to promote child protection as well as the timely movement of
cases toward permanency.
First, the draft addresses the challenge currently posed by
the fact that approximately 1,200 Superior Court abuse and
neglect hearings each month are dispersed among all 59 sitting
judges, as well as a number of senior judges. This places
enormous demands on both CFSA and corporation counsel staff,
and has substantial operational implications for both agencies.
Second, the draft provides strategies and resources to
address the timelines for handling abuse and neglect cases.
According to court data, a significant number of the estimated
4,500 pending abuse and neglect cases in the Superior Court
have now been processed within the timelines prescribed by the
Adoption and Safe Families Act [ASFA]. The failure to process
cases within ASFA timelines isn't in the best interest of the
District's children. Delays in achieving permanency adversely
affect our children, who need long-term stability in their
lives, and may result in the imposition of monetary penalties
on the District.
Although we strongly support the discussion draft, we
believe it would benefit from several amendments. First, there
may be exceptional circumstances that would justify an
individual judge either retaining one of the cases that is
currently under review or retaining a case after he or she
leaves the Family Court.
This practice should be narrow and limited to the most
extraordinary circumstances; specifically, when a case is
nearing permanency and changing judges would both delay that
goal and result in a violation of ASFA.
Second, the duration of judicial assignments in the Family
Court should be set at a minimum of 3 years in order to promote
continuity and to attract experienced jurists.
Third, as drafted, the bill limits magistrate judges to the
Family Court and would preclude the current hearing
commissioners from Family Court assignments.
And, fourth, we would like to emphasize the critical role
of a sufficient appropriation to support the staffing and
infrastructure costs required to realize the reform.
We look forward to working with you on the expedited
enactment of the proposed legislation. I appreciate the
opportunity to testify and look forward to your questions.
Thank you.
Mrs. Morella. Thank you very much. We appreciate the
testimony.
[The prepared statement of Ms. Golden follows:]
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Mrs. Morella. I know that the majority whip is here, Mr.
DeLay.
Mr. DeLay, would you like to come up here?
Ms. Meltzer, do you mind if we hold off and hear from Mr.
DeLay, and then we'll pick up with you and Judge McCown. I know
he particularly wanted to be here for you, Judge McCown.
We have already given him a very elaborate introduction and
have been awaiting his presence here, but it is really because
his heart and soul has been put into this particular issue and
he has commanded the various resources of his office and
brought everybody together on it, so it is a pleasure to have
you testify, Majority Whip DeLay.
STATEMENT OF HON. TOM DELAY, MAJORITY WHIP, U.S. HOUSE OF
REPRESENTATIVES
Mr. DeLay. Thank you, Madam Chair. I really appreciate the
committee's indulgence to my schedule. It just seems like every
time I am called to do something, there's two other calls to do
two other things. But I do appreciate your giving me this
opportunity, and particularly I appreciate Congresswoman
Norton's and Congressman Davis' interest in this, and working
with all three of you has been, indeed, a pleasure.
I know all three of you know me very well, and I'm very
blunt, so my opening statement will be very blunt.
Madam Chair, I believe that the Family Division in the
Superior Court as it exists today is a failure. Its current
organizational structure simply doesn't place the highest
priority on our children's need to have their cases resolved in
a timely manner. Federal law mandates that these cases be
decided within 15 months, but by every indicator that we see
the District Court is not obeying the law. They aren't closing
their cases on time, they aren't holding hearings on time, and
the best interests of children aren't their first priority. I
think the proposal that they are making illustrates that.
We must change the status quo, and we must change it
significantly, because this current system fails its most basic
responsibility, and that's putting the interest of abused
children first.
I believe that we have to completely revamp the structure
of the Superior Court. The judge's plan resists one of the
basic elements of Family Court reform--one judge for one
family. The judge's plan is short on reform and long on
resources and money.
My position has been very, very clear all along: I'll
support more funding for the District's court system, but I am
doing it to make sure that the needed reforms can be fully
carried out. With the funding must come improvements in the way
cases are handled and families are served, and that means real
change, not just a nice, pretty covering. The court must
resolve cases expeditiously.
Upgrading the computers and improving the court facilities,
alone, won't reduce the number of children waiting to have
their cases closed. It won't find permanent homes. It won't
produce timely decisions. And, by themselves, these changes
can't bring the District into compliance with the deadlines
that are required by the adoption of the Safe Families Act.
Here are the changes I think that the court must make: it
should establish a specialized court, require that judges are
trained before they serve on Family Court, and mandate that
judges sit on the Family Court bench long enough to become
effective, and, finally, every judge that serves on this court
must volunteer.
The children and families need a court that focuses
exclusively on their welfare and not the court's welfare. The
practice of allowing judges who rotate off the bench to take
cases with them has to end. A specialized Family Court by its
very nature requires that all family cases stay in the Family
Court. The one judge/one family concept is central to reform.
It means that families won't be shuttled from one judge to
another. A judge who knows the full history surrounding a
child's family will be better able to consider that child's
true best interest. We need judges who know what works and
doesn't work for a particular family, and they must also know
when enough is enough.
In the District, embracing one judge/one family means that
the judges will no longer take their cases with them when they
rotate off the bench. Judges tell me that family law doesn't
offer the types of cases that carry prestige or enhance an
ambitious judge's career, but I believe these cases are vitally
important because the lives of the children and the trust of
the family are directly at stake. That's why I'm insisting that
the paramount consideration in making judicial appointments to
the Family Court must be that the judge specifically wants to
sit on this court.
The judge has to be committed to the work or the children
and families that come before the court or the court will not
be well served.
Madam Chair, our proposal creates a separate pool of judges
who want to sit on Family Court and have the training and the
expertise necessary to serve. Training is critical for judges
who have to decide if and when a home is too dangerous for a
child to remain there or safe enough for a child to be
returned.
Changes in the way the court does its business will not
happen without committed judges, and that's why I believe that
5-year terms are a key measure of that commitment. A 5-year
commitment to serve on the Family Court represents one-third of
a 15-year judicial appointment. Having a 5-year term on Family
Court will increase the chances that a judge really wants to
serve on this bench and is not just serving time.
Like anything else, it takes time to become a good Family
Court judge. It takes time to learn the difference between
giving a parent a second chance at parenting and putting the
child in harm's way a second time. It takes time to learn the
difference between the fakers, the liars, the compulsives, the
mentally ill, the chronic drug abusers, the alcoholics, and the
parents who, with supportive services, can really stop hurting
their children. It takes time to figure out the right questions
to ask and to realize the flaws in the stories that you are
being told.
I would prefer a 15-year term for the Family Court judges,
but I have compromised, and, in any case, we simply must begin
recruiting people who want to be family law judges.
Madam Chair, the bottom line is this: a 5-year term will
let judges who want to serve on the Family Court get good at
it, and they can re-up if they so choose.
The legal reforms we support here--a specialized court,
trained and experienced judges, and significant terms on the
bench--would bring about a real change in the way that this
court is organized and how it goes about its business. But
these changes simply will not happen until the judges are
convinced that change is necessary, and unless the community
supports those changes.
So I hope that today's hearing sends the clear message that
we mean business about creating a real family court. Our
children deserve no less than the best that a Family Court can
give them, and that is giving them timely decisions about their
future.
Thank you, Madam Chair.
Mrs. Morella. Thank you, Mr. DeLay. Frankly, it has been
your leadership that has brought us to this point today where
we are considering an appropriate reform.
[The prepared statement of Hon. Tom DeLay follows:]
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Mrs. Morella. I know that this would be a tough act to
follow, Ms. Meltzer, but I will recognize you and then Judge
McCown, and then we'll open it up to questions.
Ms. Meltzer. Thank you. Good afternoon, Chairman Morella,
Congresswoman Norton, Congressman DeLay, and other members of
the subcommittee. Thank you for inviting me to testify this
afternoon and for your leadership on this important subject.
As court-appointed monitor of the District of Columbia's
child welfare system under the LaShawn lawsuit, the Center for
the Study of Social Policy routinely evaluates and reports on
the performance of the child welfare system. Although much of
our work in the past several years has focused on the operation
of the Child and Family Services Agency, accurately assessing
the effectiveness of child welfare services necessitates also
looking at the functioning of the Metropolitan Police
Department, the Office of Corporation Counsel, and the District
of Columbia Superior Court. Each of these agencies performs
critical functions in the provision of effective child welfare
services and, like a chair, the system stands or falls on the
joint performance of each of its four legs.
It is not news to this subcommittee that the District's
child welfare system does not comply with the requirements of
the LaShawn Remedial Order or with the Federal Adoption and
Safe Families Act. Too many children in the system grow up in
foster care without achieving timely permanence through
reunification with their birth family or through adoption. It
is for this reason that I strongly support the legislation for
change in the Family Division of the D.C. Superior Court.
I say this not because I believe that the court is the root
of the problem of what is wrong with the child welfare system,
nor because I believe that just fixing the court will
immediately solve all of the system's deficiencies; I say this
because I believe that all of the intertwined parts of the
District's child welfare system must simultaneously change in
order to achieve better outcomes for children and families.
The proposed changes in the court's structure under
consideration at this hearing will make it possible for the
necessary and complementary improvements at CFSA, the police,
and the Office of Corporation Counsel to be effective. I am
strongly supportive of the draft legislation that you've
crafted, although I do have a few suggested changes.
Despite the strong evidence of the desire of the current
court leadership to implement improvements, I believe that
legislation is necessary to address some of the structural
problems that currently exist and to assure that any change is
institutionalized.
In my view, effective court reform must incorporate four
basic elements, some of which are embodied in the legislation
and some of which will require modification to the current
proposal. These four elements include: Committed judges in the
Family Division who are willing to serve for an extended term.
The current practice of judicial rotation does not work. My
preference is for a 5-year term, but I believe that if judges
serve terms within the Family Division of between 3 and 5
years, there will be a substantial improvement. Judges need to
be recruited who want to do this work, and then they need to be
supported to continue to do this work. I also support the
provision in the bill that will add permanent magistrate judges
in the Family Division, and I agree with the court's
recommendation that the magistrate judges be court-wide.
Second, the court needs to be given the resources and be
required to provide substantial training to both judicial and
non-judicial personnel. This training must be ongoing and must
include a provision for joint training with the court's other
essential partners--social workers, attorneys, and the police.
Third, the court needs to operationalize a commitment to
``one judge/one family'' that will end the arbitrary division
of the caseload into separate calendars. There is no clear
rationale, from my point of view, for having separate calendars
for intake, case reviews, and adoption, nor for having
different judges hear different family law issues involving the
same family or child. Experience from around the country
suggests that structuring the court to allow for ``one judge/
one family'' will yield considerable improvement in case
processing timeframes and ultimately will benefit children and
families. I am not convinced that there are any conflict of
interest issues that would preclude assigning one judge to hear
all Family Court matters for a particular family.
Fourth, the court must assure that, absent a very
particular and compelling reason for a case to remain with a
judge when the judge leaves the Family Division, all cases
should be retained by the Family Division. While I understand
that the Superior Court's rationale for disbursing the Family
Division cases throughout the entire court was to promote
continuity, my experience over the many years that I have
served as monitor suggests that this practice does not work. It
does not serve the interest of the children toward achieving
timely permanency, and it has created considerable
discontinuity and lack of consistency for all of the other
stakeholders, including social workers, the Office of
Corporation Counsel attorneys, the guardians ad litem, and
families.
The goal is not for a child to have a permanent
relationship with the judge, but to ensure that, as quickly as
possible, the child has a permanent relationship with a family.
It is for this reason that I suggest modifying the provision in
the proposed bill that continues a special master to review the
existing caseload. The existing caseload should be brought back
and maintained in an adequately resourced Family Division as
expeditiously as possible, with the quick hiring of magistrate
judges and the selection of the Family Division judges.
In summary, I hope the Congress moves quickly to enact
needed legislation and that the final legislation has an
expedited implementation date. At the current time, the
leadership within the Mayor's office, the Child and Family
Services Agency, the Office of Corporation Counsel, and the
Superior Court have committed themselves to work together in
more productive ways on behalf of abused and/or neglected
children.
This legislation has the potential to provide the framework
and resources to assist the court in making needed changes that
can parallel changes underway throughout other parts of the
system.
Thank you.
Mrs. Morella. Thank you very much, Ms. Meltzer, for your
very succinct and appropriate testimony.
[The prepared statement of Ms. Meltzer follows:]
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Mrs. Morella. Because we have a vote on the floor now, we
are going to recess this subcommittee for about 15 minutes and
then we'll reconvene. Thank you.
[Recess.]
Mrs. Morella. I'm going to reconvene the Subcommittee on
the District of Columbia.
It is now my pleasure to recognize Majority Whip DeLay to
introduce our final witness on the second panel, Judge McCown.
Mr. DeLay. Thank you, Madam Chair.
It is, indeed, a pleasure to introduce Judge Scott McCown.
I have been told during this whole process for over a year now
that judges don't want to serve on family law benches, that
judges get burned out within 18 months to 3 years if they do,
that judges are not responsible for being activists in making
sure a child welfare system works, that judges are to be
objective bystanders in this whole process.
Well, from Texas we have a judge that refutes all of those
arguments. We have a judge that has been a District Court judge
in the State of Texas for, I think, 12 years. He is not burned
out--far from it. He is excited about dealing with the lives of
children and families in Travis County, TX. He is so excited
that he serves on the Texas Supreme Court Task Force on Foster
Care, has served on the Texas Children's Justice Act Task
Force, a multidisciplinary group working to improve the process
of fighting child abuse. Most importantly, he has been active
in the State of Texas in passing legislation urging an increase
in funding to fight child abuse. Under the leadership of
Governor Bush at that time the legislature increased funding by
over $200 million in the 76th legislature. He has won many
awards. He is listening to child advocacy issues all across
this Nation because he is a judge that enjoys his job, enjoys
working with families and kids, and enjoys what he is able to
do to affect the lives of children.
So, Madam Chair, I might also mention he happens to be a
Democrat, too.
Scott McCown, judge of the 345th District Court in Austin,
TX.
Judge McCown. Thank you, Congressman. It is my pleasure to
be here today to perhaps as an outsider share some perspective
on this. I am a Democrat. In fact, I come from a progressive
wing of the Democratic Party in Texas, and you could have
knocked me over with a feather when I answered the phone and
Tom DeLay was on the other end asking me to take a look at
this.
But the reason that he asked me to and the reason I was
willing to is because I have lived through legislatively
mandated court reform in the child abuse area in my own State
and I wanted to share briefly my experience, and then comment
in really some pretty blunt terms about why the reform plan
proposed by the Superior Court here simply won't make a
difference.
And let me begin by saying that I could be a K Street
lawyer. In fact, my daughter often asks me why I'm not. And I
got into this business completely by accident when I became a
judge almost 13 years ago, and for the last 10 years I have
been responsible for one-half of our county's child abuse
docket, so I come to this from a very unusual path, but for 10
years I have been responsible for children who are brought into
court by our Child Protective Services from the day the removal
order is signed until the day they go home, or go with a
relative permanently, or are placed for adoption, or until the
day they turn 18 and graduate. And I've got a lot of graduation
photos on the wall since I have been doing this for 10 years.
In our State, through the leadership of Governor Bush, one
of the first things he did when he became Governor was appoint
a committee to promote adoption and reform the court system,
and since the reform legislation took effect on January 1,
1998, no CPS case has taken more than 18 months from start to
final order. The overwhelming number have taken less than 12
months. Within 10 months of removing a child from a parent
where termination is appropriate, we terminate. Within 20
months the child is adopted--not 20 more months, but 20 months
from removal. Or within 10 months the child is placed
permanently with a relative. And over 50 percent of the time,
after appropriate services, within 9 months a child is returned
home.
We have done that through legislatively mandated reform.
What it takes is a court that is committed, where a judge, a
single judge, from the day the case opens until the child
leaves the system, is responsible and accountable for that
child's life.
Now, critics of this proposal have said that, ``Well, we
can't do that because people will burn out.'' In fact, if you
have a committed judge who takes the case from beginning to
end, the satisfaction of making that work and meeting those
performance standards is what guards against burnout.
The high burnout rate in the District I think is actually a
result of the calendar system that the District uses, where
they divide the case between many, many different judges, and
judges can't experience success and can't see the happiness,
really, of families.
The other thing I would say to you about burnout is that
judges are not fragile and they can do this job. We ask police
officers to be police officers for a career. We ask social
workers to be social workers for a career. And judges who have
far less stress from the field in both of those occupations can
do this job without burnout, and they do all over the country.
In urban areas every bit as difficult as the District we have
family courts with judges who have been there 10, 15, 20 years
working on the problems of children and families.
The other argument is that we cannot find quality judges to
do this. That, again, is simply not true. I would say to you,
when you stop and rephrase the question, do you mean to say
that in the District of Columbia the President of the United
States cannot find 10 to 20 lawyers who are committed to
children and families who are willing to serve in the Family
Court for 5 years and make a difference, who are quality men
and women? I don't think that's true. I think there are 10 or
20 who could do the job and do a quality job and care about
these kids.
There has been a lot of talk about whether a 5-year term or
a 3-year term is appropriate, and I discuss that in my written
testimony and can talk about it further, if you would like, but
really 5 years is the minimum for the judge to become
adequately trained and to learn how this system works and to
provide the advantages of specialization, training, continuity,
you have to have a judge who will do the job for at least 5
years.
I'm happy to answer any questions in detail. I know it is
kind of confusing. And I don't wish in any way to cast
aspersions on the Superior Court. I'm sure that they care very
much about kids. But the truth is, in courts all over the
country poor children and families get short shrift from the
judiciary, and that's what needs to change if you are going to
change their lives.
Mrs. Morella. Thank you, Judge McCown. Thank you for
traveling here and giving us the benefit of your experiences
and your commitment.
[The prepared statement of Judge McCown follows:]
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Mrs. Morella. I'm going to defer the first round of
questions to begin with to Mr. DeLay to start the questioning.
Mr. DeLay. Thank you, Madam Chairman.
I did not have the opportunity to read Judge King's
testimony, and I apologize for not being here, but, Judge
McCown, what we're trying to do here in the District is to
reform the system with the best interest of the kids in mind.
Part of that is to beef up CASA in this District. Could you
explain how we use CASAs in Texas?
Judge McCown. Well, CASA stands for Court-Appointed Special
Advocate, and I'm sure the committee members are familiar with
it. In Texas each jurisdiction will have a CASA organization.
It is usually organized as a nonprofit. And the organization
will supervise, train, recruit community volunteers who will
then advocate for a child from the beginning to the end as they
make their way through the system, and it has been an extremely
valuable tool to bring additional resources to the child
welfare system and to connect the child welfare system with
places in the community that it wouldn't otherwise be connected
with, and it has also been extremely valuable for our children
in terms of providing advocacy and continuity.
The judges in our county actually were the ones who brought
and founded CASA to our county in 1986, and we have about 40
percent of our children now are served by CASA, so it is an
extremely valuable organization.
Mr. DeLay. I want to revisit this burnout issue. First, you
mentioned 5 years was important, but is 5 years enough, in your
estimation, to create this notion that you get judges that
actually want to practice family law or sit on the bench and
deal with family issues? And please address the whole burnout
issue--I know you were pretty articulate about that, but this
is critical.
See, I wanted the 15-year term to be all family court, and
yet I've come down to 5 years. Is 5 years too short, in your
estimation? And you might want to readdress the burnout issue.
Judge McCown. Let me begin by talking about the calendars,
because I think you have to understand the calendars in order
to understand burnout and the term.
What the District--excuse me, what the Superior Court is
proposing to do in their reform plan is to have a permanency
branch that is divided into three abuse and neglect calendars,
one adoption calendar, one termination of parental rights
calendar, and one permanent guardianship calendar.
That means that if a child comes into the system they start
on the abuse and neglect calendar, so they have one judge. If
that judge rotates while they are on that calendar, they may
have a second judge on that calendar. Then, if the child--if
Child and Family Services is going to advocate for termination,
the child moves to the termination of parental rights calendar,
where they have at least a second and maybe a third judge. If
the judge rotates while they are on that calendar, they may
have a fourth judge.
If parental rights are terminated and the child is now free
for adoption, they move to the adoption calendar, where they
have another judge. If that judge rotates off the adoption
calendar while they are there, unless he takes the case with
him, then they are going to have another judge.
I don't know if the child stays on the adoption calendar
forever, but once, I think, his plan changes to no longer be
adoptable, if that happens, he may move to the permanent
guardianship calendar, where he has another judge.
So the calendar system means you don't ever have one
family/one judge and you don't have a single person that is
accountable, and then it is compounded by the rotating of
judges on and off the calendars.
Contrast that--and how this relates to burnout is very
important. It relates to burnout because you don't have a judge
who experiences success. If you are on the abuse and neglect
calendar, you may see some success from the kids that go home
off your calendar, but the kids you send on to the next
calendar, you never know what happens. And if you are on the
termination of parental rights calendar, you are seeing no
success. You're sending them on. And the adoption and
guardianship calendar, you don't have the joy of sending kids
home. And so you've diversified and cut up the job in a way
that leads to burnout.
The other problem it leads to, of course, is you don't have
good, consistent decisionmaking being made about that child,
and, most importantly--and this is what is critical, and this
relates to the 5-year terms--you don't have a single judge who
is accountable through performance measures to say, ``This is a
judge moving the docket, disposing of the cases,'' and that's
critical, that personal responsibility.
So how does that relate to the 5 years? Frankly, if you
pick the right people to be judge, the 5-year issue goes away
because they will want to be there for 5 years and they will
renew for a second 5 years. But the reason the 5 years is
critical as a piece of legislation is because that will then
change who becomes judge, and that's why this is such a
contentious issue.
When you say you've got to be in the Family Court for 5
years, you have changed the cast of people who are willing to
step up and be judge, and you've got a new cast of people from
which you can presumably have a much greater chance of drawing
trained, committed judges who want to be there, as opposed to,
as you put it, Congressman, people who are willing to serve a
3-year sentence to then get a 12-year advantage of being on the
fancy Superior Court in some other division. It changes the
cast to apply for the job.
The second important thing about 5 years is that cases are
filed every day throughout a 5-year term, and so if you want a
judge who is actually going to be there for that child and that
child's family, then you've got to have a judge who is going to
be there for some number of years.
I illustrate this with a model in my written testimony
that, if you are following the cases and we assume it takes a
year to dispose of the case, which would be fabulous in the
District, and you were there 5 years, 80 percent of the cases
would have one judge/one child. If you were there only 3 years,
then only 66 percent of the cases have one judge/one child. So
it affects the delivery of the one judge/one child.
But, finally, and perhaps most important, I have had
children die on my docket, so I'm not here to criticize
anybody. I've had two children die as a result of decisions
that I made and signed orders on. This is a difficult business.
It takes about 2 years to figure out who is who and what is
what and how you do this. If you have a judge for 2 years
learning, getting up to speed, you have the advantage of that
judge for 1 year and then they're gone--66 percent of the time
training, 34 percent of the time performing, as opposed to 5
years, which would be 44 percent of the time training and 56
percent of the time performing. It makes a huge difference.
You've asked me whether 5 years is enough. I would say 5
years is the minimum. If it is a 5-year term with renewable, I
think you've got a great start toward changing the system. It
is the minimum.
Mr. DeLay. My time is up. Thank you.
Mrs. Morella. We'll come back for another round.
Ms. Norton.
Ms. Norton. I think in fairness I have to hear from those
who have opposed. I was not going to begin with that question.
I do want to lay the predicate for it by understanding
something about Travis County. Where is Travis County?
Judge McCown. It's in Austin. Well, Austin is in Travis
County.
Ms. Norton. What does it include? What does it include?
Judge McCown. We have about 200,000 children, so we're
about double the size of the District in terms of child
population. About 20 percent of our children would be in
poverty, which is about half what the District is, but because
we're double in size we actually have more children in poverty
in the county than does the District. And----
Ms. Norton. I just wanted to understand what Travis County
is, because we're not in a county, we're not in a State.
Judge McCown. Right.
Ms. Norton. There has been a lot of talk about panels here
from Judge McCown. Our bill does, in fact, require one judge/
one family, and I don't want to insert into this something that
is not in our bill, but I do think those of you who have said
that 5 years are not appropriate for this place need to respond
to what I think was an important answer that you heard from
Judge McCown.
I suppose first I should hear from Judge King, because,
according to Mr. McCown's testimony, your plan would, even with
our bill, force people into four or five different judges.
Since that is obviously against the express intent of this
bill, you need to respond to what he said, if you would.
Judge King. Thank you, Congresswoman Norton.
Let me thank, in his presence, Congressman DeLay, whose
efforts have been so helpful in focusing attention to this
area.
I'd like to pick up on one thing that Judge McCown said
that I believe is a feature of our proposal reading our court,
our judges, our lawyers. I, of course, am not competent to
comment on the legal culture in Travis County. But I believe
that a 3-year term in our situation draws a balance between the
threshold to bring people into the family assignment and at the
same time, with renewable and extendable terms, would encourage
judges to continue service in that area.
I think Judge McCown said it best. If the Family Court is
well-designed and the work is adequately supported, the 3-year
or 5-year issue goes away, because the judges will become
interested in renewing and extending those terms.
So what our settlement on 3 years--and I appreciate that in
any political determination there's always expected to be some
trading and compromise, and we appreciate there has been a
tremendous amount of compromise. On this area I am trying very
hard to find a way to go beyond what we would recommend, and I
can't, in good conscience, do so, because I am looking at a
circumstance that many of our strongest family judges have come
from ranks where they weren't necessarily family judges to
begin with and that become stars of the Family Division and the
Family Court.
I believe that this will give us the strongest appeal,
given the pool of lawyers that we are looking for, to come on
to the Superior Court, to opt into the Family Court, and to
then stay.
So I believe that the people that we are looking for will
get there. They will get there by professional development and
commitment as they do their work, rather than----
Ms. Norton. I don't know what the answer here is, and, you
know, it is all ``a priori'' blueprint stuff that depends on
individuals. I must say that I am struck by the antipathy
between what everybody expresses, which is the notion that
you've got to want to do this and volunteerism on the one hand
and compulsion on the other. ``Hey, you've got to want to do
this, but you've got to want to do it for 5 years or for 3
years or whatever.'' And I am completely unconvinced that if
you want to do a particular kind of work you will never burn
out.
Let me speak about the Congress. People want to be in
Congress so bad that Mr. Delay is against campaign finance in
order that they would be able to spend any amount of money to
get here. People pay--raise a million, $2 million, $3 million
to sit in the House of Representatives. They kill their
opponents to be here. They come here and there is very little
turnover based on being defeated, I say to my fellow Democrat,
Judge McCown, but there is a lot of burnout, and we lose some
of our best Members, people who I can't imagine leaving--they
are in closely held Districts, they have had to raise money
every time, they love what they are doing, they would love to
stay here if they could find an easier way to do it. They have
proven that they want a volunteer to come. They have proven in
a way that no judge will ever have to prove. But they get
burned out. They go back home to go into law or they bother us
from K Street. [Laughter.]
So, I mean, whoever wants to tell this Member that if you
want to do something you will never burn out has a very high
burden to meet, and so far I have not had it met.
Now, Judge McCown, good lawyer that he is, wants to attempt
to meet that burden.
Judge McCown. I'd like to meet that burden, if I could. I
don't mean to suggest that a person who volunteers and has
commitment doesn't burn out. I don't mean to suggest that at
all. What I do mean to suggest, though, is that the way the
District organizes its calendar right now and proposed to
promotes burnout--that if you change the way the calendar is
organized and, with increased resources not just for the judges
but for Children and Family Services so that you can experience
greater success, that will also decrease burnout.
Those are critical, so don't misunderstand me. Those two
steps are critical. Having taken those two steps, the question
then becomes, ``Do we want to ask judges to serve for 3 years
or 5 years?'' And what I'm saying is that, as an administrative
matter, when you think through the numbers, a 3-year term does
not give you a trained, competent judge for most of the time he
sits in the division. It does not give you one judge/one family
for most of the cases that are heard in the division. And you
will change the pool of applicants based on whether you require
three or require five.
Ms. Norton. Judge McCown, are you aware that our judges sit
on the average for 9 years, and that, therefore, 3 years would
be one-third of the time that the average judge sits on the
bench in the first place?
Judge McCown. Well----
Ms. Norton. Are you familiar at all with our court? Have
you spoken with anybody in the District of Columbia who is
familiar with our courts?
Judge McCown. Yes, ma'am. I----
Ms. Norton. Who?
Judge McCown. Well, I talked with Jim Marsh at length, who
is a child advocate and an attorney who has practiced in the
District. I read all of the written testimony from the judges.
And what I'm bringing to you are not somehow idiosyncratic or
local principles from my district. What I'm bringing to you is
best practices in judicial thinking that you will find in the
books and the manuals.
Ms. Norton. Yes, well, we found a lot of disagreement on
best practices and the number of years is all over the map,
Judge McCown.
I do think this notion--if I could just ask your indulgence
to respond to one of Judge McCown's point--if Judge McCown is
right that somehow in the Family Court with the panel system
you have--divorces and whatever, branches or whatever--that
there would be--we would no longer have one judge/one family.
That raises the most troublesome point for us because Mr. DeLay
and I are in agreement that there must be one family for one
judge.
I think you need to respond specifically to Judge McCown's
notion--I didn't hear you respond to that earlier--about
whether your division within the Family Court will take away
one of the prime points of this bill.
Judge King. We don't disagree with that notion. In fact----
Ms. Norton. Well, how will you organize--if it is 3 years,
how will you organize the court so that one judge and one
family, in fact, is the case?
Judge King. The calendars, as we plan them--and let me
point out that we are constantly looking at that to see if
there is--to see if that is the best way to implement one
family/one judge. We don't disagree with that goal at all.
The way it works now, according to the plan, the way the
plan sits now, teams of a judge and three magistrates would
take the case in, the case would go to a team member from the
day it came in and it would remain with that team member for
the balance of the life of that case.
The only time it would go out to one of the other
calendars, assuming that it had the same child and there were
the same issues, would be in cases where due process
requirements required that a different judge hear some parts of
the case.
For example, a termination trial might require a judge who
had not spent years listening to hearsay and hearing third-hand
comments from social workers about other family members, and so
on, just to give the elements of a fair trial in the
termination process.
But otherwise there would be one judge or magistrate judge,
depending on who took it, picked up the case. That judge would
be supported by the team, would be able to consult on the case,
much as in the medical profession--you have grand rounds--so
you'd have an opportunity to have a constant dialog with other
judges.
We already have proven the elements of a one judge/one
family system because that's much of what we do now, and I can
say from my own experience in neglect cases that I agree with
Judge McCown--there is nothing more satisfying than being able
to take a case where, for example, an adoption looks like it is
going to work, and conferring with the adoption judge, that
case gets sent to my calendar or the matter gets sent to my
calendar. I simply instruct the parties to file it on my
calendar and I'm responsible for the entire thing, for closing
the case.
So we have--we are very acutely aware of the advantages of
one judge and one family, and our calendar structure addresses
families and children where they don't all have the same
issues. A custody issue, for example, doesn't need to go on an
abuse and neglect calendar, it should go on a custody calendar.
If there is a custody issue in a neglect case, then it stays on
the neglect calendar. So we are very much in agreement on the
one judge/one calendar issue.
I would also--let me point out one other thing there has
been on the burnout issue. There is satisfaction in being able
to take a child's case to the conclusion, the successful
conclusion for that child. There aren't a whole lot of things a
judge does that are more satisfying and important and
fulfilling and that make a greater contribution to the
community.
The problem in the past--and I'm happy that we are sitting
at the table here, that among us at the table here is Dr.
Olivia Golden. In the past, we have not had that adequate
resources piece, so that, no matter what the calendar structure
we had was, we knew going in that it was going to be extremely
difficult to provide the services and to focus the appropriate
resources in bringing the case to permanency promptly.
I believe, I'm very optimistic, that's in the process of
changing and that we are moving to an era when that won't be
true, and obviously that is going to make a big difference for
judges, as well as social workers and others involved in the
system.
Mrs. Morella. The gentlewoman's time has expired.
Picking up on the same point, it seems to me that the
mandated length of service is a critical point where there are
different opinions. The Senate version, the Senate draft of
proposed legislation would have current judges serving 5 years,
but would have the newly appointed judges serving 3 years--I'm
sorry, just the opposite. Those who are currently serving would
be serving the 5 years--will serve the 3 years.
Judge King. If I may, I believe----
Mrs. Morella. Would you clarify that, and then I want to
pick up on another point.
Judge King. Yes. We haven't actually seen the draft, so I'm
a little bit shooting in the dark, but I----
Mrs. Morella. I just heard about that.
Judge King [continuing]. But what I have heard is that
existing judges--I suppose in recognition of the fact that
they've already sort of learned to be judges, but now need to
learn the family--the specifics of a family assignment, and
judges who have already served periods in the family court, so
that they would not need the same thing, would serve for 3
years. New judges seeking appointment to the court would
anticipate a 5-year term. I believe that's the structure.
Mrs. Morella. I'm going to ask all of you very briefly your
opinion of that, but I also want to point out something else,
and that is that the plan also before us calls for judges to
serve for 3 years and judge magistrates to serve for 4 years. I
just wondered, have any of you given any thought to making the
term 4 years? We're talking about 3 and 5 and your judge
magistrates would be 4 and those who are currently serving
would be 3 and the new ones would be 5 and----
Judge King. We have been--I think our notion was to be sure
that terms were staggered so that you always had a pool of
experienced judges and magistrates, and the other thing,
frankly, we borrowed from the experience in a number of
jurisdictions, including Ohio, where much of the calendar work
is done by magistrate judges, and that was an experience that
we drew on in formulating that part of the plan.
Mrs. Morella. Yes. And you think that would be effective? I
know Senator DeWine has been very much involved with the Family
Court issue.
Judge King. Yes. And the magistrate terms are coterminous
with their term of service, their 4-year terms.
Mrs. Morella. Their 4 years.
Would the rest of you like to comment on, again, the 3
years, 5 years, 4 years, with justification? Dr. Golden.
Ms. Golden. I guess the comment I would make is that our
review of the national experience--for example, as summarized
in the Council for Court Excellence summary of experience
across the country, shows a very big element of agreement,
which is that multi-year terms matter. Having judges who come
with experience and training and then who serve for multiple
years really matters.
I don't think we read the national experience to give you a
number. The successful courts that they visited ranged from the
3-year range up. And so I don't think that there is a single
answer to this. I think that the most key thing and the reason
that our testimony says a minimum of 3 years is that we need
the move from where we are now to a place where we have at
least this multi-year opportunity in order to move ahead.
And I guess the one other thing that I would add, speaking
as someone embarking on the task of reform of CFSA in a way
that fits with the reform of the courts is that, from my
perspective, a big opportunity the this legislative change,
this work offers is that we can all embark on it together and
that the team of judges, the core group of judges who will
serve for that multi-year period, at least 3 years, and who
will be gaining--who will be having the support as well as the
training and the expertise, we will have a group of judges to
work closely with as we move ahead, rather than working with
all 59 doing their best to remain connected and committed.
So I would highlight that I think the national experience
suggests multi-year, that we all do our best to interpret that.
As I say, we've interpreted it as at least three, and that, in
itself, is an important step.
Mrs. Morella. And that some jurisdictions do have a
mandated minimum of more than that. We'll be asking Mr. Harlan
also, you know, for his comments on best practices as he has
seen it.
I am very interested, Councilwoman Patterson, especially
since you are going to be having this other hearing and----
Ms. Patterson. Let me acknowledge I have no firm, fixed
personal view on terms, but I take the point of recommendation
made by our court in terms of what is likely to work in our own
court's culture and so forth, and taking Mr. DeLay's point that
change won't happen until judges accept the need for change.
It's important to work with what we have today. At the same
time, I would also share the view that I would very much like
judges to want to serve 15 years or more in this function. I
think the desire to do this work is very important.
Mrs. Morella. You know, we've got to increase the concept
of our culture of making this important. I've felt that way
about teachers, and certainly people in a position like that.
We've got to say this is something of deserving of our
recognition and attention.
Ms. Meltzer.
Ms. Meltzer. I would just add that I guess my position is
closer to Judge McCown's than the Superior Court in the
District. I think that what we know is that children in this
system now stay somewhere between 4 and 5 years, so if what
we're really trying to do, until we bring these lengths of
stays down, if we want to achieve a one judge/one child, then
it leads me to support more in the range of 5 years rather than
3 years.
On the other hand, I think 3 years would be a big
improvement over the 6-months to the 1-year rotation that we
have now.
I also know from my own experience as an external monitor
of the child welfare system for going on 7 years, that I still
find out new things about how the system operates every day.
Child welfare policy and practice is extraordinarily complex,
and the more judges have the time both to learn and experience
it, the better.
The last thing is that I definitely think that you can
recruit qualified judges who want to do this job and who want
to do it for a minimum of 5 years if you set 5 years as a term.
Mrs. Morella. My time has expired. I'm going to recognize
Mr. Davis. But I do want you to be thinking about a question I
would like to have you answer in the future, and that is:
should there be something that we do to incentivize judges for
wanting to get on that court besides the fact that they know it
is important because they are dealing with our youth who will
become our leaders, but what we might offer in that regard?
So, Mr. Davis, I am pleased to recognize you, sir, for
questions.
Mr. Davis. I think one of the points we've left open--I
just will give you my opinion on 3 years or more. It is 6 in
Virginia, and let me just tell you, after 6 years everybody
either wants to get re-appointed or they want a promotion to
the bench. You don't have anybody who says, ``I'm burned out. I
want to go back. I want to do something else.'' No one moves
from the juvenile domestic relations Family Court back over to
General District Court. It doesn't happen. And you get a
dedicated cadre of folks who carve out a career niche, and I
just don't think you have to face this with the kind of
community we see out of the court system. It's just a no-
brainer from the perspective that I've had, and I practiced out
there for a number of years before I came to Congress.
But one of the points that we've left open for discussion
is the total number of judges and magistrate judges that would
be necessary. We've talked about resources. You can have a
dedicated cadre, but if your docket is overwhelmed, even if
they are dedicated, you're back to where you were.
Do we have any figures in mind at this point? What analyses
have been done on this to know what resources we would need in
terms of judges and magistrate judges?
Judge King. We have--sidestepping for a moment the issue of
the existing case load under review, we have analyzed the
capacities of judges to address cases, and our conclusion is
that we would need 15 judges and 9 magistrate judges to staff
the Family Court as it is currently--as the current draft
appears.
Now, that sidesteps the issue, if you suddenly, in one
block, brought all cases under review into the Family Court,
then there would be a different--that would be a different
situation.
We are arguing for and hoping that we can come out of this
with some sort of phased process for bringing cases that are
now among the 59 judges in closing some of them and bringing
some of them in a gradual fashion. That way we could----
Mr. Davis. Could I ask this--could we get in the record any
analyses that were done to come up with these numbers so that
we'd have a better feel for it?
Judge King. I'm sorry?
Mr. Davis. Any analysis you've done to say that we need 59?
Judge King. Yes, I will be happy to do that.
Mr. Davis. I just think that ought to be part of the
record----
Judge King. I will be happy to supplement the record.
Mr. Davis [continuing]. Judge, on what that's based so we
can take a look at that.
Judge King. That would be fine.
[The information referred to may be found on p. 152.]
Mr. Davis. Let me just--Judge, let me ask you, can you
explain to me how the current mediation program in the Family
Division operates?
Judge King. We refer cases on a largely voluntary basis.
That's going to change. I think one of the parts of our plan is
that mediation should be used in every case, assuming that
you've made adequate safeguards for the safety of the
participants in mediation and you're watching for issues of----
Mr. Davis. So you're going to change it. Let me ask you--
let me start over here, Scott. How are mediation programs in
other jurisdictions organized?
Judge McCown. Well, in Texas we have mediation organized in
many different ways. We took money from the court improvement
project and the Children's Justice Act to fund a lot of
mediation experiments, and I do support the use of mediation in
this area.
Some counties are mediating right at the outset to develop
family plans that they feel they get a great deal of buy into,
and if the plan doesn't work that they are more likely to
secure a voluntary termination. Other counties--in my county,
for example, we use mediation primarily toward the middle of a
case to dispose of it on the merits.
So there's really a wide variety of federally funded
research right now, but I think mediation can be a big part of
both a better resolution and a speedier resolution.
Mr. Davis. All right. Let me ask--I've got two other quick
questions. Judge, I understand that the current head of the
Family Division, Judge Walton, is leaving the bench. How long
did he serve in the Family Division?
Judge King. He has been--over the years, he spent--I'd have
to get the exact number, but it has been many years. It has
been multiple years.
Mr. Davis. And what is the process you are doing to select
his replacement?
Judge King. I have already contacted someone to take his
place, and----
Mr. Davis. Can you tell us what process you went through?
Judge King. The same process that I went for with Judge
Walton----
Mr. Davis. Yes, but I'm not familiar with that.
Judge King [continuing]. And that was to look among my
more-experienced judges who enjoyed the respect and standing
among their colleagues who I felt would be the best leader to
take the Family Division through what I knew at the outset,
before we even--before I even met Mr. DeLay or any of the
Members here, would be a period of transition.
Mr. Davis. So experience and leadership are two of the
qualifications you are----
Judge King. Yes.
Mr. Davis [continuing]. Looking at in this----
Judge King. Experience in family affairs, connection to the
issues, and ability to lead colleagues.
Mr. Davis. OK. Could I ask just one more question? Ms.
Golden, I wanted to ask a question. We want to ensure that the
judges have access to the necessary files, because without that
you're just not going to get good decisions, and we've seen
that with Brianna and some other cases, so we want to make sure
that judges have access to all necessary files, data bases,
other relevant information in order that they can make informed
decisions about the well-being of the child.
What are city agencies and organizations such as the public
schools doing to implement a computer system that can be
integrated with the court system?
Ms. Golden. Well, perhaps I could start with the Child and
Family Services Agency and then----
Mr. Davis. Sure.
Ms. Golden [continuing]. Talk a little bit about other city
agencies.
One of the key things that makes this the right time to
enact this legislation is that it is a moment of reform in the
District, as well, and so several key things have happened
which make it possible for us to provide information and
support high-quality decisions. We've had legislation that
unifies the Child Welfare Agency, so we are at last going to be
able to provide information about abuse and neglect in a
unified way. We have had a major commitment of resources, which
will enable us to have enough social workers and enough
attorneys, which is a key part of transmitting information.
That's often where information doesn't happen. And we are also
focusing both on our own automated information system and on
closer ties to other agencies. Now that we are back as part of
the District, we have the opportunity to have those
conversations with our fellow agencies.
So there are--all the pieces are in place to make that much
more possible and much more--much stronger than it was before,
and I think the opportunity to work on that with a dedicated
team of judges who also have the supports to work on it on
their end will give us the greatest possibility of a positive
outcome.
Mr. Davis. Madam Chair, my time is up and I know we have
some votes on, so I will yield back.
Mrs. Morella. I'd like to give Mr. DeLay an opportunity for
just a few minutes to ask a question.
Mr. DeLay. Thank you, Madam Chair. Obviously, we're getting
pressed for time and I don't want to dwell on a lot of these
issues. Let me just comment, Judge King, that I appreciate the
job you are trying to do and how hard it is to do and how hard
it is to change the status quo, but I've got to tell you,
reading your proposed court rule, which is not even in law, it
is very lacking in more areas than just the length of service
and the multiple calendars and that kind of thing. Even your
answers here today indicate that you're more interested in the
comfort and the careers of your existing judges than in the
interest of these kids.
The culture--and I think someone said that the culture of
D.C. is different than anywhere else in the United States. I
can't disagree more. The children in D.C.--if you are an 8-
year-old girl being pimped by your family members, is no
different than the 8-year-old girl in Houston, TX, being pimped
by their family members. The child that gets red socks--do you
know what red socks are? That's where you take a baby and drop
them in boiling water and it creates red around their feet--no
different in Washington, DC, than they are in Seattle, WA. The
kids that are being abused, the kid that just this morning on
Pennsylvania Avenue that was being severely beaten by their
mother in the back seat of a car is the same kind of kid that
is being severely beaten in Sugarland, TX. So the kid and the
abuse and the neglect is the same. It doesn't matter where it
happens. It matters how you treat that kid. That is what is so
vitally important in their cases.
And I've got to tell you, Madam Chair, when we are looking
for incentives, it is an incentive when you go to a person and
say, ``You want to be a judge? Then you are going to serve 5
years of your career being a family law judge.'' And that is an
incentive to become that judge, because you know you are going
to spend 5 years of your career, plus options, maybe the whole
15 if you want to serve there.
And what your stuff--Mr. King, I'll give you a chance to
respond--is all about is keeping the status quo with a few
tweaks. The status quo has failed the children of this
District, and the tweaks are going to fail them again.
I just have got to say--I mean, you mentioned due process
in this whole calendars thing. Due process is not the issue in
implementing one judge/one child. The whole concept of one
judge/one child is undermined by your insistence on maintaining
separate calendars.
What we are trying to do--and it is systematic. What we are
trying to do is to create a system that understands human
weaknesses, human desires, and the way humans act when faced
with a certain situation, and what you have proposed ain't
going to get it.
And, ma'am, with that--I'll be glad to let you respond,
Judge King, but I don't need the hold this panel.
Mrs. Morella. Mr. DeLay, can you come back after the vote?
Mr. DeLay. I'll come back for the other panel.
Mrs. Morella. And I know that the ranking member has
questions, and I do, too, so if you would be patient and let us
recess again for 15 minutes and come back with the same second
panel, thank you.
[Recess.]
Mrs. Morella. I'm going to reconvene the Subcommittee on
the District of Columbia.
Thank you all for your patience. Now you understand what is
a somewhat typical day for us. Very often there are even more
votes that are called, but we did have two.
I look forward to the day when Congresswoman Eleanor Holmes
Norton accompanies me over to the floor of the House to vote.
[Laughter and applause.]
I think the majority whip is planning to come back. He
wanted to also ask some further questions, and I know that our
ranking member has questions she wants to ask, too.
I might want to ask Judge King about this idea of one
judge/one family. How do you handle a situation where a judge
goes to a different court but he has a case--a family which he
is serving? I know it is kind of in the legislation sort of up
to your discretion to make that determination. How will you
possibly make such a determination? And would a 3-year term
impair that?
Judge King. The way--I was just discussing that briefly
with Congresswoman Norton. The case is characterized by what
brings it to the court, so if it is a divorce case it comes in
as a divorce case. If other issues emerge as the case develops,
it turns out there are other issues, then that raises the issue
of another issue needing to be decided, and there are other
calendars to address those issues.
What we would do in that case is to coordinate between the
judges with responsibilities for, say, a divorce case and a
neglect case, and the judges would work out between them which
one will be responsible for the life of the case.
Typically, when an abuse and neglect case comes in, that is
where the case remains, and all of the other matters that might
arise come onto that calendar by discussion with the judges.
If I might have just a brief moment, have the committee's
indulgence, I don't want to leave the record long burdened with
the statements that were made just before the recess. In
particular, I have to respectfully object to the
characterization of our judges as not putting children first
and more worried about their own comfort than about the safety
and health of children. That is just wrong. It is incorrect and
wrong. There is no more-dedicated group of judges who work
tirelessly to try to get these cases right, to try to get them
to resolution. They work extra hours. They agonize over these
decisions. They take training. I have probably three requests a
week for training seminars that these judges do not have to
take, some of them not even in the Family Division who seek out
opportunities to get better at their jobs, to learn more about
what they can do to help the children and families in the
District of Columbia.
The second thing I don't want to leave unremarked is the
comment that there's no due process issue in family cases. When
we become judges and are invested--sworn in, that is, our oath
contains the phrase ``to administer justice without regard to
persons agreeably to the Constitution and laws of the United
States,'' and those bodies of law contain rigorous due process
requirements which do apply in family cases, as has been said
in the Supreme Court of the United States, as has been said in
the Court of Appeals in the District of Columbia.
So while, of course, we want to work vigorously for the
best interest of the children, we are judges and we are bound
by the law. We can't just do what seems right. We have to
follow the law.
That's all I'd like to say.
Mrs. Morella. Thank you, Judge King.
I wondered if the others on the panel would like to comment
on what some of the challenges might be in having one judge for
one family with the 3-year term.
[No response.]
Mrs. Morella. What I could do is lean to--Judge McCown,
yes?
Judge McCown. If I could comment, I guess the need I see
for change in the District relates to dividing abuse and
neglect cases among four different calendars, and I guess it is
going to require some further legal work today, but in
jurisdictions across the country termination cases are heard by
the same judge who hears everything else, and I'm not aware--
and it may be that the law in the District is unique in this
regard, but I'm not aware of any Federal or circuit or any U.S.
Supreme Court opinion that says a termination case can't be
heard by the same judge who has heard the abuse and neglect
case up to that point or would then hear the adoption and
guardianship. I don't see that there is a due process issue
there.
When you divide it into four different calendars, you're
taking your most difficult cases and moving them through four
different judges instead of one judge, and I just wanted to
kind of sketch for you in a vivid way what my docket is really
like. I mean, from the moment the case is filed it is my
responsibility and my statistic. The children come to all of
the hearings. They come with their foster placement or their
RTC placement, and it is my responsibility to get that child to
the point where the court literally closes the case, and that
is a resource-intensive issue. And one of the things that Judge
King and I were visiting with is the importance--I know this is
an authorizing committee and not an appropriating committee,
but it is very important that the resources come with any
authorizations that you make, because it is going to take
resources.
But the other point that I would make is that it actually
turns out to be more efficient. You can move the children to
permanency in a much short timeframe. And so when we say we
can't do this for resource reasons, what we really mean is we
can't do this right, and so we are going to be forced to do it
wrong.
I really think it is important that the resource issue be
tackled, but that the docket be set up in a way that does it
right.
Mrs. Morella. I would love to have you, Judge King, respond
to that--the whole docket question.
Judge King. The way it works, or the way we imagine it
working, as we haven't set this in place yet--as it now works,
we move cases between judges only when it is necessary for due
process reasons, and I agree with the general characterization
that often a judge can hear everything involved in a case, but
there are cases where you cannot. There are cases where the
efforts at reunification, which our statute requires us to pay
some attention to, have involved the kind of involvement and
the kind of information that would be inadmissible in a trial,
to a point where a judge cannot give the appearance of being
fair in deciding a termination question, for example. And if
the parents leave a termination hearing feeling that they have
not been treated fairly, that they have been before a judge who
had a decision made up before the hearing ever began, that is
going to have long-term consequences both for the child and for
the family, no matter what resolution is made.
Our projection and plan is to have matters that come
before--and particularly we are focusing on abuse and neglect
cases--to have those cases come before one of the members of
the neglect and abuse calendars, one of the teams. That's where
the case will stay, from the day it comes in until the day it
is closed in a permanency resolution.
The exception to that would only be where there is a due
process requirement that a hearing would be required by another
judge, and then it would still return to the judge, so it would
only be sent out for purposes of addressing a motion or a
hearing, not for all purposes. It isn't successive judges; it
is simply that there will be occasions when a matter has to go
to another judge because the judge before whom the neglect and
abuse matter is pending has been so intimately involved in
efforts to either reunify or to negotiate with a potential
care-giver or family member that a termination hearing would
appear to be unfair.
Mrs. Morella. Thank you for your comments.
I am going to defer to the ranking member. I just am
curious about the fact that you say it happens rarely and would
only be in the cases of due process, and you've found that to
be the case already?
Judge King. It's certainly not in every case, but it does
happen. It does happen, yes. There's a huge amount of--let me
make clear there's a----
Ms. Norton. I think actually I am picking up on Mrs.
Morella's question, because I think, with all due deference to
the judges here, I am trying to make sure we are not angels
dancing on the head of a pin, because Judge McCown would also
agree, I'm sure, if due process questions are raised--you know,
I think it may be unfortunate the way in which this issue has
come up, and I need to know, and I think Mrs. Morella, in
pressing this, is correct, although, frankly, I'm going to move
on from this issue.
In the normal case--and this is where I want you both to
jump in and correct me and stop me--in the normal case, a case
would remain, involving an abused or neglected child, would
remain with one judge. There are exceptions. It may be
difficult--and here's where I'd like--because it was Judge
McCown whose testimony led one to believe that there would
never be a time when counsel might raise the notion that a
judge had been so involved with the abuse and neglect questions
that other issues that may come up--divorce, another child in
trouble, or the rest--would be prejudiced by comments a judge
had already made. I'm not talking about thoughts in his head
now. Judges are human beings and they sit on the bench and they
say, ``This is the worst thing I have ever seen. This is the
worst case I have ever seen. This is a terrible shame.'' They
react that way, and nobody says that is prejudicial.
But in comes a circumstance where--involving family law
where counsel raises an issue, are you saying to me, Judge
McCown, that there could be no instance in which a conflict of
interest, in lay terms--in the law we call it a due process
question, that the judge has either said or been so involved
with the case that he should not sit on an allied case
involving the same family, that never rises in Travis County?
That judge should remain on this case no matter what counsel
says about possible prejudice?
Judge McCown. No, ma'am, and if I could break it down into
three parts and kind of move toward the bottom line on your
answer, the way I understand what the District is proposing or
the Superior Court is proposing includes an adoption calendar
and a guardianship calendar, as well as an abuse and neglect
calendar and a termination of parental rights calendar.
Ms. Norton. Just a moment. It also includes divorce
calendar? Are those the only things that are included where a
case--yes, but----
Judge King. We have a number of other calendars. I think
the judge is addressing the abuse and neglect cases.
Ms. Norton. OK.
Judge McCown. Right.
Ms. Norton. All right.
Judge King. And we have a number of cases where that's not
an issue.
Ms. Norton. All right.
Judge King. Not for calendars.
Judge McCown. And so I would have no criticism of a judge
who said, ``I want to be very fair, and if I'm handling an
abuse and neglect case, if I don't think I should hear the
termination I want to refer that to another judge.'' My point
though would be that once the termination happens or doesn't
happen, as I understand what the Superior Court is doing and
what it proposes to do, the adoption calendar is separate. So
if parental rights are terminated it doesn't come back to the
same judge, it goes to an adoption judge. That guardianship
calendar is separate. If it is going to go into a permanent
guardianship, it doesn't come back to the same judge. So that
would be the first point.
Ms. Norton. Well, just a moment, because I'm trying to get
this straight. Is that the case, Judge King?
Judge King. That's not correct, actually. They would go out
to the other calendar for purposes of that hearing and then go
back to the judge who is presiding over the neglect and abuse
case, so they don't go wandering around the courthouse when
they need to go out to this calendar.
Now, it turns out that with 1,500 new cases coming through
every year there are enough cases to warrant having a separate
calendar for these times when a case does have to go to a
neglect--for a neglect--for a termination trial or a permanent
custody trial, but then they go back to the presiding judge.
And for the adoption calendar, of course, that's a calendar
where there are any number of cases that don't have any abuse
or neglect issues in them at all, so you need a separate
adoption calendar.
Judge McCown. Well, you may need other judges handling
private adoptions that don't come into the context of abuse or
neglect, but on a unified calendar the same judge would decide
all adoption issues as the abuse and neglect, the same judge
would decide all guardianship issues as the abuse and neglect.
It would be one judge.
What I'm saying to you about due process--and there's a
difference between the minimum that the law requires and what
we might want to do. I do not think that there is any Federal
due process law that says a judge who is presiding over the
preliminary pre-trial abuse and neglect case can also not hear
the termination. That would be no different than, say, a judge
who has a big antitrust case who hears all of the pretrial and
also tries the antitrust case and makes the antitrust order.
Ms. Norton. Would you agree with that? Do you agree with
that, Judge King?
Judge King. No. Children are different from antitrust
issues. The problem with that is that the--when a child comes
onto a calendar, comes before a judge, there is first an effort
to try to work with the family. We're required by law to look
at that and to consider it before moving to other dispositions,
so you don't just bring a child in and say, ``Boom, you're on a
trial calendar and we're going to terminate parental rights and
move on.'' You have to work with the existing family.
There's no normal child in these circumstances, but a
rather typical pattern is crack Mom is off getting her drugs
and the child is found on the streets at 3 a.m. unattended by--
unsupervised by an adult.
That child comes before a judge. That judge then tries to
work--find out how serious the drug problem is. Is there any
chance of reaching a successful resolution, of coming to some
sort of reunification, or is there a good family member. That's
all negotiation. It is reacting to people. It is meeting
people. It is working with social workers and lawyers to try to
work out the best solution.
Where that can't occur, where after those efforts have been
unsuccessful, then the case has to go for trial, and sometimes
it can be tried by the judge, if there has been no extensive
hearsay or other inadmissible evidence or improper
considerations brought into those negotiations and discussions.
But a lot of times they can't. You just have to send it out
for trial and then bring it back after the issue has been
decided and decide--then the child is then again before the
judge who retains a beginning-to-end responsibility for what
happens to the child.
Judge McCown. Congresswoman, Judge King and I can brief
this question, but what I was saying that he said he disagreed
with, but I don't think actually that he would, or maybe I've
misunderstood him. There is no--as far as I know, there is no
Federal law that says it is a due process violation for the
same judge to preside over the beginning and middle as the end
of the case.
But the second point I was going to make is if, as a matter
of fairness, you thought that it was fairer and you wanted to
go beyond minimum due process standards and have a judge
preside over the termination, that's a policy decision that
could be made, but even there we're talking about two calendars
and about the case if there's--whether there's termination or
not, returning to the original judge, who then continues to
shepherd that child toward adoption if parental rights have
been terminated or toward permanent guardianship with a
relative if you can find one, and I don't think that is what is
happening in the District.
Ms. Norton. This is very tough. You're right. We have to
look even more closely at it from both sides.
I tell you one concern I have with the same judge, and I
just don't have the evidence of how it works, but we all know
that an overriding concern is to get children adopted through
the Adoption and Safe Families Act. I do not know about the
District of Columbia, because I know so little. This is a
matter, as you might imagine, that shouldn't even be in a
Federal body like this. But I do know that when people work
with a mother for a long time who is struggling to gain back
her child and keeps lapsing, very often there is a tendency to
give that person one more chance.
You know where my prejudice lies? Terminate it. My
prejudice at this point--and here this comes over many years of
seeing what happens to children, very young mothers. It's very
difficult to think that this woman is not going to get her life
together. My concern is the opposite of the due process
concern, frankly. My concern is that the judge who becomes
involved with that family, has had family members come and say,
``Look, this is the only member of our family. We are working
with this girl. And this girl becomes a woman and she doesn't
get off and nobody wants to take that child.'' My concern is
that somebody who has not become involved with that family hear
this thing, look at how long this child has been there, sees
that this child is now 7, how long are you going to wait? Or
see that this child is now 4 or, you know--and I'm getting to
the point, based on the scientific evidence, where much beyond
2 or 3 we are just tossing that child away, waiting for
somebody in some court in some system to work through in good
faith.
So, if anything, I suppose this might be called the
``conservative'' side of the picture, but I now believe that
the best interest of the child is early termination, not
working with the mother until you somehow get her to do what
it's too bad it turns out she can't do. She's got her life.
This is a life that is just staring.
Judge McCown. And, Congresswoman, that is the best argument
for the one judge/one family case, because, as a judge with
long tenure and deep experience, I can make an informed
decision about whether this is a case where we need to give
another chance or this is a case where we need to terminate.
One of the problems with separate calendars is that the
termination judge may lack the experience of understanding what
our chances are for adoption, what our chances are for
guardianship or may lack the experience of understanding that
this is a family that just can't do it.
You can't atomize these decisions about the family. You
have to have a judge with broad experience on every one of
these calendars who can make a hard call in this case about
this family.
Ms. Norton. I can understand that, and I can understand the
argument both sides, and you are absolutely right. This comes
down--this is why we give judges discretion, because this comes
down--these are judgment calls. That's what judicial discretion
is all about.
Let me ask you, just to get on the record, what is the
yearly intake in Travis County of Family Court cases and then
neglect and abuse cases?
Judge McCown. We have about 500 cases with about 1,000
children right now, and we would----
Ms. Norton. 500 of what kind of cases?
Judge McCown. I'm talking about child abuse cases.
Ms. Norton. Yes.
Judge McCown. About 500 child abuse cases, with about 1,000
children, a little over on both numbers, and we would be taking
in approximately 20 new cases a month.
Ms. Norton. I asked because I do want us to at least keep
in context what we are faced with here.
The Family Court here gets 12,000 new cases per year. The
Family Court here gets 1,500 neglect and abuse cases per year.
This is really the predicate for my next question. I mean, I
think they would die for your case load. But my next question
is why judges here have, in fact, taken the cases, Judge King,
and given them to 59 judges. Was that a matter of case load?
Were you trying to maintain a relationship of the child to the
judge? How many of these cases--what proportion of these cases
have stayed within the Family Division as opposed to being
shipped to all of the judges in the division? Give us some
sense of how the court operates.
Judge King. Until the late 1980's, 1988 or 1989, all our
cases did stay in the Family Division. They would come on and
appear before one judge in the Family Division, the matter
would be tried and decided, and then that judge retained the
case for the life of the case.
In about 1988 the case--the new number of cases--and
there's a larger number of children involved, but the case load
was running around 250 coming in every year. In the late 1980's
that started to shoot up, I believe in connection with the
crack epidemic, and it went from 200 to 300 to 350, and at
about 350 we were simply unable to keep all of those cases in
the Family Division as a matter of judicial resources. We just
couldn't do it, and so--for two reasons. One is just the hours
in a day. You can fit--if all judges take the cases, that's a
few hours every week that they can devote exclusively to family
members and they can absorb that load, while a small number of
judges in the Family Division would end up doing nothing but
neglect reviews, which simply wasn't feasible because we had
responsibility for incoming trials and all the other business
of the Family Division that was before us.
So for the calendar reasons we did that. More importantly,
we had a neglect review calendar which had all of the neglect
cases coming up every month for--or every periodic, every
review period, which would be anywhere from 3 or 4 months in a
given case to every 6 months. That calendar became so crowded
that a review consisted of, on a good day, 5 or 10 minutes of a
judge's time. There would be maybe 30 cases in a day, and by
the time you got all the parties before the court and reviewed
the report it was too short a time to do anything meaningful.
So the real fundamental reason for sending them out to
judges who were no longer in the Family Division was that it
gave the judge an opportunity to spend some serious time with
the case, to become acquainted with it, to take time at these
reviews, which now take anywhere from an hour to an hour-and-a-
half of judge time to schedule and review the report and
conclude. So that was the reason for getting there.
Obviously, if we had the resources we could move them back
into the family division, where we thought they belonged at the
beginning.
Mrs. Morella. Thank you. We are going to be submitting
questions to you that we would like to have for the record and
to help us with our deliberations, because we could go on all
afternoon with asking further questions.
But, before I recognize the majority whip, I just wanted to
ask you, Ms. Meltzer, because you are with the Center for the
Study of Social Policy, about this concept we've talked about,
the six different calendars, the one judge/one family, if you
would like to make some comments, the due process.
Ms. Meltzer. Yes, I am glad to respond. I think it is
important to broaden the discussion beyond what they do in
Texas as compared to what we think we do in the District of
Columbia. Experience across the country in effective courts
shows that, in fact, keeping as much as you can within one
judge and within one court makes a difference. It makes a
difference in the ability to move and process these cases
quickly, while you are at the same time respecting the due
process rights of families.
I think those cases where you may need to remove the judge
who has been involved in the case at the beginning in order to
make a fair determination at the end, are the exceptions rather
than the rule, and experience across the country shows that.
Certainly, if there is a prejudiced judge, the lawyer is
going to ask to change jurisdiction and you would remove the
judge in that case. There are many courts that are bigger than
the District that assign cases, for example, coming in to
judges alphabetically. For example, one judge takes all the A's
and B's this month and then carries those cases. Other courts
assign cases geographically so that all the cases, for example,
coming in from ward eight would go to three or four judges.
This has some advantages, particularly as you are trying to
promote the court's understanding of the community-based
resources available to the court.
Although I am not a lawyer, I am not persuaded that the
potential problems of conflict of interest or due process make
a difference, based on what I've seen from around the country.
On the question you raised, Congressman Norton, about
whether a judge who has been involved with the family for too
long, has become ``soft'' on the family, I think it cuts both
ways. I think we see that in judges here. I see that with some
of the judges believe they have been the only continuity for
this child for many years as the system has turned workers over
and over and over and over again. Those judges are sometimes
reluctant to cut the strings because they've become too
involved.
On the other hand, when you have--we see it in workers.
When you have a constant turnover of social workers, sometimes
the new person getting the case, they think, ``Well, you know,
we haven't been able to make a decision here because we haven't
given them a chance, so I'm going to start again. I'm going to
start the clock running again.'' And so sometimes the turnover,
in itself, produces poor decisionmaking.
The key, as I see it, is to have a trained judicial work
force who understands ASFA, understands the timelines,
understands the nature of the practice, and can develop
relationships with a stable work force of social workers--and
we've got to work on that, too--and who can work together to
move these cases in the best interest of children.
I think that is what everybody wants to achieve, although
there are some differences in opinion about how to get there.
Mrs. Morella. Ms. Golden, would you like to respond to
that?
Ms. Golden. Yes. I also, I guess, want to take it back to
our shared goals and the way I think you've all worked so hard
on the discussion draft to find ways to get to those goals. I
share the view, which I think several people have expressed,
that the way to accomplish the goals in ASFA, which are goals
about making good decisions for children promptly, sharing, I
think, the concern that Congresswoman Norton articulated, that
if you don't make decisions quickly you lose precious years in
a child's life. So the goal is to be able to make good, quality
decisions quickly so a child can have a relationship with a
permanent family.
What is in the discussion draft is a commitment to the
principle of one child/one judge with the ability for the court
to come back with a specific plan. What's in the discussion
draft is the commitment to that core group of judges who will
be supported and trained and experienced and able to handle the
cases. That will make a huge difference for us at the agency
level, because it will mean we will be working with this highly
trained cadre of judges who are supported, themselves, not
seeking to have our work force with its limitations stretched
in quite the same way across all judges, so that means we will
be doing higher-quality work, too, and we'll be able to work to
ensure that those children have the best decisions possible and
the best outcomes. And I, too, think that's what the national
experience suggests and that we all really are very close, I
think, on the principles and the key points that you've laid
out in your discussion draft.
Mrs. Morella. Thank you.
Mr. DeLay.
Mr. DeLay. Thank you, Madam Chair.
I might, just for the panel and for the chairwoman and Ms.
Norton, the key to all of this is a system, and that's what
we're arguing about here--a system, as I mentioned earlier, and
the system that answers a lot of your problems is if you have a
strong CASA, a strong CASA unit here that brings in the
community that in two ways--one, the CASAs are in the courtroom
with the best interest of the child, so the judge may get soft
on the family but the CASA doesn't get soft on the family
because the CASA is interested in the child, and the community
and the CASAs hold the judges accountable, which is what people
are not talking about here, particularly, Judge King, in your
draft. It is not--there's no way you can hold judges
accountable.
So I want to ask you, Judge King, how does the Superior
Court currently use CASA volunteers and how do CASAs factor
into the reform plan, because I read your plan and I see no
mention of CASAs or child advocates or anything.
Judge King. We actually have talked about that on a number
of occasions in the course of our staff discussions. We are
very supportive of CASA. They have performed an invaluable
service in our court. They have a strong program. Their leader,
Ms. Rad, is present today in the hearing room. They have sought
funding from us. We've given them almost 90 percent of their
request traditionally, and we are very supportive. We'd like to
see that role expanded.
I agree with you entirely that one of the things that we
need is accountability. The draft I notice has a specification
that there will be a report using--we would prefer a generic
standard, because standards may change, but some nationally
accepted best practices gauge and will hold us accountable. We
want to be sure. We welcome that. That should be a part of any
reform plan, and we think CASA should be strengthened and
encouraged and enhanced. We would welcome that.
Mr. DeLay. Does that mean that you, as the chief
administrative judge, would encourage any of your judges or all
of your judges to, especially on the tougher cases, to make
sure they have a CASA on that case?
Judge King. Absolutely.
Mr. DeLay. Because I don't believe that's the case right
now. What I understand is CASA only handles about 350 cases at
this point.
Judge King. It's a small percentage because their office
here has been small and they have been--I know that they, like
the rest of us, are struggling for resources. But we have
informally encouraged judges to use them historically as a part
of our plan. That will be increased, and, to the extent that
they can be expanded to cover a greater portion of our
caseload, we would welcome that. It would be a very helpful
addition to our----
Mr. DeLay. That's good. The court's written comments
indicate an unwillingness to end the practice of allowing
judges to take family cases out of the Family Division. Can you
tell me how many cases exist outside the Family Division right
now?
Judge King. The current--and I think maybe you had not come
into the room as I gave a little bit of history as to how we--
no, I think you were--the history as to how we got there.
Looking forward, our plan contemplates that all of the cases do
stay in the Family Division, only with very narrow exceptions.
One obvious one is if the case is so near permanency placement
that to transfer it to another judge who then has a learning
curve and has to get set up again only to terminate the case
months later----
Mr. DeLay. I hate to interrupt you, but I'm asking what
now. How many----
Judge King. Right now it is the existing cases we have been
talking about, approximately 4,500.
Mr. DeLay. OK, 4,500. And what is the range and average
length of stay in foster care for the children who are subject
to those 4,500 cases? Do you know?
Judge King. Let me--if I may, let me supplement the record
with a response to that question.
Mr. DeLay. OK.
Judge King. I would be happy to give it to you.
[The information referred to may be found on p. 152.]
Judge King. I know that it does range from very new to
cases that have been in a number of years.
Mr. DeLay. OK. Then you may have to submit this too, but do
you know why these cases have not come to resolution and
permanent placement for those children?
Judge King. Many of them are cases that have eluded
permanency placement, and I mentioned a couple of types of
cases. I'm going to see if I can just--here a teen who sets
fire to every foster home she has been placed in. Just it has
eluded us. We haven't found the right formula. A teen who keeps
absconding from placements each time she is placed in a
placement, but she will call a judge and the judge is able to
sort of talk her back into care and back onto her medication. A
child of 15 who was hospitalized after 5 years of sexual abuse
in her adoptive home. She endured this without reporting it in
order to protect her younger sister, who was not being abused.
Many of them are cases that are just very, very--have proven
very, very difficult.
Another--if there's any single group of cases that has
proven difficult for us, it's older teens. When people come
into the system for the first time. Now, that's not to say that
we can't improve our record with early referrals. When a child
comes in at 18 months or 3 years or in the very young period, I
think there is some improvement, and I hope that we can enjoy
that, or expect to find that for these children when we--as we
move into our new organization. But there will be some cases
where a child comes into the court at 11 or 12 and adoption
becomes less likely--not impossible, but less likely. So those
are the types of cases.
Mr. DeLay. Yes. And it's pretty tough.
Madam Chair, I just have one question of the judge, but I
might mention there is an answer and we are building it in my
home county and it is a community for those kids to have a
permanent home, not moved from foster care to foster care. And
when we get that built we're going to come build it here in
D.C.
Judge King. Then we'd like to see it and look at it.
Mr. DeLay. It will be here.
Judge McCown, do you think that cases should stay with the
judge who is most familiar with them when the judge leaves the
Family Division, or should those cases stay in the Family
Division and those that are already outside the Family Division
be returned to the Family Division?
Judge McCown. That's a really important question, because
at first blush it seems to be contradictory to say that cases
that are outside the Family Division should be returned and at
the same time be saying you ought to have one judge/one child,
but I'm saying both of those things, so how do I reconcile the
two?
The answer is that you have to look at this in terms of
judge hours, and it makes no sense logically to say we don't
have enough judges in the Family Division, so those cases have
to go and leave the Family Division and be disbursed among
other judges, because if those other judges are doing those
cases right and are giving them the amount of time they should
take, then you could collect up how much time that is and move
it into the Family Division. However many judges it takes in
the Family Division to do the cases right--and, again, that
comes back to the appropriating committee is going to have to
work with the authorizing committee.
But the reason you want all those cases in the Family
Division is for two reasons. First, look at this from the point
of view of Dr. Golden's outfit. They have 1,200 hearings a
month that are spread right now over 59 active judges and about
20 senior judges. That means that a group of social workers
that is already spread too thin with not enough time is being
asked to answer to 80 different judges in different places with
different agendas, and when you are working places in you don't
get the consistent, on-time calendaring.
If you move them all back into the Family Division, where
they are handled in one place by one set of judges with an on-
time calendar, it would make a tremendous difference to Child
and Family Services.
Second, look at it from the judge's point of view. Once I
leave the Family Division, I cannot stay focused on what is the
current resources in the community, and I am no longer focusing
on what my numbers are in terms of moving these children to
permanency. I've now been moved. I've got to learn a new area
of law. I've got to focus. I've got responsibilities. I have a
whole different set of priorities.
Contrast that with the judge in the Family Division, which
the judge in the Family Division is current on who is doing
what in the community and what the resources are and focused on
the numbers of getting children to permanency in a set amount
of time and being accountable for it.
Now, it may be--and I just want to say I am actually
dubious that the judges who are taking their cases are really
all that familiar with the cases and the kids and are giving it
all that time. That may be true, but, frankly, I know a lot of
judges, and if it is true here the rest of the country needs to
come here, because it would not be true anywhere else in the
country.
The calendaring system you already have means that when the
judge leaves with that case he hasn't had it from the
beginning, anyway. There hadn't been one judge/one child now,
and so you just have some judge who has the case last, who
rotates off with it into another division and can't stay
current on it. I think those cases need to come back. They need
to be carefully reviewed and there needs to be a real
permanency push. I don't doubt that they are the most damaged
of the kids and that it is going to be very difficult to seek
permanency.
I also want to say I don't doubt that there are some judges
and some kids who really know each other, and you might want to
have an exception rule. But if I were doing the exception rule
I would have a total overall percentage. You can have an
exception rule, but it can't be more than 10 or 20 percent of
the total case load to sort out the cases that should stay from
the cases that need to go back and re-investigated and re-
invigorated.
Mr. DeLay. Thank you, Madam Chair.
Mrs. Morella. Thank you, Mr. DeLay.
I'm going to ask, Judge King, ask you to provide something
for the record. The current workload, including filings by
calendar and dispositions for the judges in the Family
Division, and the number of Family Division cases that are
assigned to judges in other divisions of the Superior Court. I
can give it to you in writing, but if you would get that back
to us, and then----
Judge King. That's fine. We would be happy to supply that
information.
Mrs. Morella. Thank you very much.
[The information referred to follows:]
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Mrs. Morella. And we will be asking some other questions of
this terrific panel of great expertise.
Congresswoman Norton, did you want to make any statement?
Ms. Norton. Thank you very much. I think you're right,
Madam Chair, that we can get any more information we need from
these witnesses through written questions.
Mrs. Morella. We certainly held you a long time, but we
appreciate very much your commitment and the expertise that you
bring to it, and thank you for traveling such a long distance,
Judge McCown.
Judge McCown. It's always a pleasure.
Mrs. Morella. Thank you very much, Judge King. Thank you,
Councilwoman Patterson. Thank you, Dr. Golden. Thank you, Ms.
Meltzer. Thank you.
The third panel will now come before us.
Judge King. Thank you, and thank you for the interest. I
think the children of the District of Columbia are going to
benefit.
Mrs. Morella. Thank you. I think they will, too.
So now I am going to ask our third panel, who has waited so
long, patiently: Sister Josephine Murphy of St. Ann's Infant
and Maternity Home; Steven Harlan, chairman of the board, the
Council for Court Excellence; Margaret McKinney of the Family
Law Section of the District of Columbia Bar; and Tommy Wells,
executive director, the Consortium for Child Welfare.
Again I reiterate my appreciation and the appreciation of
the subcommittee for your patience in waiting so long, but it
is such an important issue.
I will ask you--I should have asked you before you were
seated--the policy, again, of this committee and subcommittee
is to swear in those who will be testifying, so if you will
raise your right hands.
[Witnesses sworn.]
Mrs. Morella. Thank you. The record will reflect
affirmative response.
Sister Josephine, thank you so much for being with us. We
will proceed with you, if that's all right, for 5 minutes
testimony, and any statements that you have given to us in the
way of testimony or exhibits will be included in the record.
Thank you.
STATEMENTS OF SISTER JOSEPHINE MURPHY, ST. ANN'S INFANT AND
MATERNITY HOME; STEPHEN D. HARLAN, CHAIRMAN OF THE BOARD,
COUNCIL FOR COURT EXCELLENCE; TOMMY WELLS, EXECUTIVE DIRECTOR,
CONSORTIUM FOR CHILD WELFARE; AND MARGARET J. MCKINNEY, FAMILY
LAW SECTION, DISTRICT OF COLUMBIA BAR
Sister Murphy. Thank you. Chairwoman Morella, Congressman
Norton, Congressmen DeLay and Davis, I certainly want to thank
you first for inviting me to testify today. My name is Sister
Josephine Murphy. I am the administrator of St. Ann's Infant
and Maternity Home. I'm happy to be here today because for many
years I have felt that the legal system has failed to protect
the rights of the youngest and most vulnerable members of our
society, our children. I have very strong feelings about it.
Brianna was one of our babies, but Brianna was only one. There
are many who have died in the system. There are many who have
been beaten to death and starved to death. There are many
children that are in and out of St. Ann's, who come back after
more abuse, where the courts return them home without enough
investigation and enough rehabilitation and without agreeing to
terminate parental rights when it is necessary, so I strongly
support the establishment of a Family Court with trained and
committed judges to serve. I say ``trained'' because I firmly
believe that some child development training, as it relates to
children in this system, is needed.
Child care workers are required to have 40 hours of
training every year by law, even if they have worked in child
care for 15 or 20 years. This training for the judges should
relate, I think, to such things as separation and loss, to
understand how children at different age levels react to and
feel about it. Also, to help the judges better understand
children's fears about ``telling it like it is'' to the judge
and to their lawyer. Children are afraid to do this because, as
they say, ``The judge will send me home, and then I'll just get
it a lot worse than I got it before for telling.''
We all have an appreciation for families and know they are
the backbone of society, but it is equally if not more
important, when speaking of children in the system, to look at
the developmental clock of a child. Many go on for years being
pitched between home, emergency placement, and foster care, and
many times a continuous repeat of this until they are halfway
or three-fourths of the way to adulthood. Many of our young
moms and children at St. Ann's are classic examples of this.
The legal system needs to put into action the Safe Family
and Adoption Act of 1997, and this is where the commitment I
spoke of comes in. The judge needs to follow cases through and
have the courage at the right time to give children back their
childhood. In the best interest of a child, there comes a time
to look at the timeframe realistically and say, ``It's
enough.'' It is time to terminate parental rights and end the
child's ordeal and satisfy the need and right they have to
permanency, protection, and love in a family setting. This
needs to be done before they are older and so aggressive and
disturbed that nobody wants to adopt them.
I strongly advocate the 5-year term or longer, and I do
this because as I just mentioned, training. I don't know about
the rest of you, but I have found whenever I go on a new
mission it takes me the first year or two to even know what end
is up, and so I think our children deserve better than to have
someone new constantly coming into that position.
Another issue is the need for greater coordination and
communication between courts and social services, a need for
more professional respect and working as a team in the best
interest of the child, whose very lives are in their hands--and
I repeat that--their very lives are in the hands of those
judges and social workers.
A judge only knows what the social worker tells him and
writes in the record. If the child had been placed in and out
of the home five times, the mother had already been in 19 drug
treatment programs--as one of our moms was, to no effect--the
social worker needs to communicate this and the judge needs to
demand the information if she doesn't, and then act on it.
Another thing that always bothers me is that people
involved in these cases miss court hearings, which causes cases
to experience long delays, as do the interstate compact papers,
which is another whole problem--and one which I hope someone
will deal with before long.
Family Court should act as the authority to hold
accountable those that are empowered to work toward the best
interest of the child, finding creative ways to keep siblings
together and allowing the child his or her best and most
expedient opportunity for permanency.
I know I'm running out of time, so I beg you for once, just
once, let's really do something in the best interest of the
child. Just for once, forget about Democrats, Republicans,
judges, social workers, and our own best interest and consider
what's the right thing to do and have the intestinal fortitude
to do it. Please, I would ask--and I know this happens many
times with bills, etc.--no slipping in the attachments,
amendments, whatever, to get what we want to further our own
political agendas. Let those wait for another time, another
bill.
We're always telling other countries about their human
rights violations, so let's clean up our own back yard first.
People in glass houses shouldn't throw stones. Let's just pass
this one for the kids--the kids we all say we love and see as
the future of our country.
I thank you all for listening. God bless you.
Mrs. Morella. Thank you, Sister Josephine. You really say
it like it is. We thank you.
[The prepared statement of Sister Murphy follows:]
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Mrs. Morella. Mr. Harlan.
Mr. Harlan. Good afternoon, Chairwoman Morella and
Congresswoman Norton and Congressman DeLay. We're delighted to
be asked to testify here today on behalf of the Council of
Court Excellence. My name is Steve Harlan and I chair the board
of directors of the Council of Court Excellence. I'm joined
here in the room by Timothy May, who is our Council's
president, and Priscilla Skillman, senior vice president, who
has really done a lot of work on this area.
The Council of Court Excellence has been engaged for the
past 21 months in facilitating the joint work by the city's
public officials to reform the child welfare system and
specifically to meet the challenges of implementing the
Adoption and Safe Families Act of 1997. We believe that work
affords us a relevant and contemporary perspective on the
issues before this committee.
The Council of Court Excellence is a District of Columbia-
based nonpartisan, nonprofit, civic organization that works to
improve the administration of justice in the local and Federal
courts and related agencies in D.C.
We have judges who are members of our board, but let me
emphasize that no judicial member of the Council of Court
Excellence prepared in or contributed to the formation of our
testimony here today.
Today's hearing focuses solely on the District's Superior
Court's Family Division, and particularly its role in the
city's child protection system; however, we must not lose sight
of the fact that the court is simply one of several principal
players in this system. Fixing the Family Division, while
laudable and long-needed, will not, by itself, yield a smoothly
functioning child protection system in the District of
Columbia. Each part of the safety net--the Child and Family
Services Agency, the Office of Corporation Counsel, the
Metropolitan Police Department, and the Family Division of the
court, and the private bar appointed to represent parents and
children--must be fixed simultaneously.
In your letter inviting the Council to testify here today,
you stated that the purpose of this hearing was to examine
proposals to reform the Family Division, especially to better
address child abuse and neglect cases, including current
backlog, and examining practices in other jurisdictions. We
will address both issues, starting with the second.
How do other successful jurisdictions organize their courts
and child protection system? Early this year, representatives
of the Council of Court Excellence and the D.C. Superior Court
visited Chicago, Tucson, Louisville, and Newark, four urban
area Family Courts identified as innovators in meeting the
rigorous case management standards of the Federal Adoption and
Safe Families Act.
In March 2001, the Council of Court Excellence reported our
findings. We learned that first-hand, high-quality child
protection systems can both operate as divisions within general
jurisdiction trial courts like the D.C. Superior Court and as
stand-alone Family Courts. One key to good results in these
jurisdictions has been the court-specific practices and
procedures for handling cases of child neglect and abuse,
always with a focus on providing better service to the children
and to the users of the court.
This 2001 Council of Court Excellence report listed 10 best
practices. I'll not mention those, but we will add that report
to our testimony here today.
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Mr. Harlan. In our opinion, the bill under discussion
today, which would reform the Family Division of the D.C.
Superior Court, supports these Family Court best practices. We
believe that to be true. Let me, though, comment on some
specific issues within that bill.
No. 1, Family Court within the D.C. Superior Court--we do
support the decision to reform the Family Division within the
D.C. Superior Court rather than to establish a separate Family
Court. We believe that this approach promises a faster, more
effective, and more economical way to improve services to
children and families in the short run. In the longer run,
keeping a unified general jurisdiction court permits more
flexible, faster response through fluctuating court case loads.
No. 2, judicial term of service in Family Court--the
extension of the judicial terms in the Family Court is a needed
change. We believe that a minimum of 3 years is an appropriate
minimum of rotation, but hope that the Family Court operations
improve so well that many judges will welcome the opportunity
to serve longer.
No. 3, one judge/one family--we believe this is absolutely
essential. The bill mandates this system to the greatest extent
practicable and feasible to ensure that all family issues in
the Family Court can be handled by a single judicial officer.
The bill requires the Superior Court to document how it plans
to follow this mandate in a 90-day Family Court transition
plan.
The court has adopted a plan for providing a one family/one
team approach to child abuse and neglect cases; however,
heretofore, with all due deference to the Superior Court, we
have not found the court willing to embrace the more
comprehensive one judge/one family concept embodied in the
bill. We urge the court to move to a one judge/one family
system of case assignment on a unified calendar basis by having
family judges concurrently hear all types of family law cases
while assigned to the Family Court. This practice is followed
in several of the other Family Courts that the Council of Court
Excellence visited. They assigned all family law cases either
by geographic sector--or by family name.
No. 4, minimum number of judges--the bill locks in an
initial number of Family Court judges as a minimum permanently.
We do not believe that the statute should prescribe a
particular number of judges of one division of a unified court,
such as the Superior Court, where different types of case loads
fluctuate over time. We therefore suggest that the appropriate
level of judicial manpower in the Family Court be set on an
annual basis by the chief judge and that Congress review that
decision annually as part of its ongoing oversight.
No. 5, keeping all family law cases in the Family Court--we
strongly support the bill's dual requirement that now-pending
family law cases be reassigned to family court and that all new
cases remain in the Family Court until closed. Based on our
research and site visits, we know of no other court other than
the District's Superior Court, which disburses its child abuse
and neglect cases to judges throughout the court outside the
Family Division.
No. 6, magistrates, judges, hearing commissioners, and
special masters--the bill creates a new category of judicial
officer, the magistrate judge, for the Family Court, but it
does not authorize reclassifying hearing commissioners
positions to the magistrate judge in other divisions of the
Superior Court. We believe this inconsistency should be
corrected.
No. 7, incentives--family law matters are among the most
stressful cases that judges and other court officers have ever
handled. In addition, the Family Division of the Superior Court
has long been under-staffed, under-equipped, and assigned
inadequate space. To signal that a new day has arrived and that
the service in Family Court is strongly valued, we believe that
statutory training incentives should be expressly provided, as
you've just heard by the good Sister here, in the bill for
judicial service in the Family Court. Specifically, we suggest
authorized funding for Family Court judges and magistrates to
receive not less than 80 hours per year of paid offsite
training in family law and related matters.
No. 8, residency--we support the D.C. residency requirement
for magistrate judges; however, we believe, as now drafted, it
unnecessarily limits the candidate pool. Permitting magistrates
to become permanent residents within 90 days after appointment
rather than before appointment would enable more qualified
family practitioners to apply for the magistrate judge position
and thus attract new residents to our city.
No. 9, staffing and space--we believe that it is an error
that this bill is silent on this issue. The Family Division of
the Superior Court has long been under-resourced to meet its
responsibilities to this city. We hope this legislative process
will correct that deficiency now and that continuing
congressional priority on child protection and other family law
matters will ensure that under-funding of family court does not
reoccur. The D.C. Superior Court will require substantial new
operating and capital funds to execute the goals of this
legislation. That funding must be forthcoming if we expect the
District's child welfare system to change for the better.
No. 10, collaboration on the 90-day plan--the Family Court
is but one part of the city's inter-woven child protection
system. How the court organizes to do its work either supports
or impairs the abilities of the other agencies to discharge
their statutory duties to children and family. As this
committee required last September with the emergency plan, we
strongly urge that the bill require that the court's 90-day
implementation plan be developed in full consultation and
collaboration with the D.C. Child and Family Services Agency,
the D.C. Office of Corporation Counsel, and the D.C.
Metropolitan Police Department.
No. 11, effective date--to convey the urgency of reform, we
believe that the bill should have a prompt effective date, not
2 years down the road. However, we also believe that all
necessary judicial staff support and facility resources must be
provided to the court prior to the effective date, or we'll
just be setting that court up for failure.
I would be happy to answer your questions. Thank you.
Mrs. Morella. Thank you very much, Mr. Harlan, and thank
you for the great work being done by the Council for Court
Excellence. We appreciate your key points and the work that is
being done.
[The prepared statement of Mr. Harlan follows:]
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Mrs. Morella. I am now pleased to recognize Margaret
McKinney, Family Law Section of the D.C. Bar.
Ms. McKinney. Thank you. Good afternoon, Chairwoman
Morella, Congresswoman Norton, and Congressman DeLay. My name
is Meg McKinney. I'm the co-chair of the Family Law Section of
the D.C. Bar. I have been a family lawyer practicing in D.C.
and Maryland for almost 9 years, and I am a D.C. resident.
The Family Law Section is compromised of attorneys who
represent children and families who will be most affected by
the proposed legislation. As family lawyers, we have always
worked with the court to improve its functioning. We appreciate
the opportunity to testify before this subcommittee.
From our perspective, there are several crucial components
to any reform plan for the Superior Court. First, and most
importantly, the Family Court must remain part of the Superior
Court and not be relegated to a separate court. We are very
pleased that the legislation does not create a separate court.
The other crucial elements of reform are addressed fully in
my written testimony, but I will touch on them just briefly.
We urge Congress to do only what is absolutely necessary to
effectuate the proposed reforms and not to unnecessarily
restrict the discretion of the court. Congress must remember
that whatever reforms are enacted will affect all of the
different types of family cases, not just abuse and neglect,
and it will also affect the court, as a whole.
We are also concerned about the funding of the reforms.
There must be sufficient funding or we will be in a worse
position than when we started.
The Family Law Section is most concerned about the length
of judicial assignment to the Family Court. If Congress
requires a minimum assignment, we believe that minimum should
be 3 years. We want to see the best and most-experienced judges
sitting in the Family Court. We believe the children and
families of D.C. deserve nothing less. However, as my written
testimony explains and as you've heard earlier today, a Family
Court assignment is grueling. Judges in Family Court don't have
juries to help them make decisions. They often don't have the
resources needed to really help the families. And they have
very little control over every other part of the abuse and
neglect system. It is a tremendous challenge for any judge.
If the legislation requires more than 3 years and places
additional restrictions on the judges, we are not likely to
attract the best judges to the Family Court. We may not even be
able to fill all the positions. The reason for this is not that
it is considered a less-prestigious assignment; it is simply
that it is extremely challenging, both intellectually and
emotionally. Judges in Family Court see the worst possible
family situations day after day. They repeatedly see problems
that have no solution, yet they are expected to fix those
problems. That is a daunting prospect.
The longest a Family Division judge is required to sit in
Maryland is 2 years. In Baltimore, judges are assigned to the
family dockets for 1-year terms.
If given proper support, we believe judges will want to
stay in the Family Court, but first we have to attract them to
it, and we must acknowledge that Family Court is not for
everyone. Judges are judges, not social workers, and they're
not supposed to be social workers.
There is a narrative in my testimony that describes what I
saw in just 1 hour in one of the three abuse and neglect
courtrooms in the District. I saw a dedicated and experienced
judge, dedicated, experienced attorneys and social workers
struggling with very difficult problems.
One case involved a 17-year-old boy who had been shot 2
nights before in a drive-by shooting. His mother was in jail.
In another case, the alleged father of the child was in
jail and the mother refused to submit to a psychiatric exam,
even though she had been previously institutionalized. Despite
the judge's urging, the mother refused.
There was also a 14-year-old mentally handicapped child
whose mother, an alcoholic, gave the child to a family friend
10 years ago. The child's father had been in and out of jail.
The family friend died, leaving her daughter to care for the
child. The child entered the system because it was that
daughter who had been accused of abusing her; 15 witnesses were
scheduled to testify, most of them against the caretaker.
There was another case involving a teenage girl with sickle
cell anemia who came to the United States from a Third World
country where no medical treatments were available to her. Her
uncle, who was the only person who had health insurance to
cover her, was accused of sexually abusing her.
In fiscal year 2000 there were more than 4,500 open abuse
and neglect cases in Superior Court. Of those, 1,400 were new
cases. But there were also more than 4,600 active domestic
violence cases, more than 3,400 active juvenile delinquency
cases.
In the Family Division and the DV unit, as a whole, there
were more than 33,000 open cases in fiscal year 2000. Each of
these cases represents a family in trouble. I haven't even
tried to describe in my testimony the difficulties faced by
judges in juvenile, custody, divorce, domestic violence, and
support cases in Superior Court. Family cases, especially abuse
and neglect, are extremely complex. I give you this information
to illustrate those complexities and to demonstrate that the
complexities are not the result of the court system. We're
dealing with human beings who have human frailties, and
reforming the court will not solve the underlying societal
problems that lead to the abuse and neglect of our city's
children, nor will it create more permanent homes for those
children.
We appreciate the need for reforms and we are grateful that
Congress is willing to help address those problems, but we urge
Congress to be cautious and to make sure that the reforms are
truly beneficial to this city.
Thank you.
Mrs. Morella. Thank you very much, Ms. McKinney. Please
know that your testimony in its entirety will be in the record.
[The prepared statement of Ms. McKinney follows:]
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Mrs. Morella. I am pleased to recognize Tommy Wells,
executive director of the Consortium for Child Welfare.
Mr. Wells.
Mr. Wells. Thank you, Chairwoman Morella and Congressman
DeLay and, of course, my Congresswoman, Eleanor Holmes Norton.
Thank you very much.
I am Tommy Wells, the director of the Consortium for Child
Welfare, and I am testifying today in strong support of the
proposed bill to establish a Family Court for D.C. within the
D.C. Superior Court.
The Consortium is a 24-year-old umbrella agency for the
private family service providers for the District of Columbia,
and we have advocated for a Family Court for D.C. since 1997.
We believe it is extremely important to have well-trained
judges who want to hear cases of abuse and neglect and have
experience in family law. We support using magistrates to staff
the Family Court, drawing from a large pool of qualified
attorneys in the city who have worked for many years in this
field on behalf of children.
All new cases of neglect and abuse must remain with the
Family Court, and the practice of sending the cases all over
the courthouse should end. This one change will improve
outcomes for children by enabling government attorneys to be
present at all child abuse and neglect hearings, and it will
assure the consistent application of our child welfare laws.
Understanding there are arguments on both sides of the
issue, we support 5-year judicial appointments to the Family
Court. We have seen the incredible impact on the number of
children adopted from the foster care system since one judge
has been assigned that responsibility--from less than 60 per
year to almost 300 per year.
This bill allows for providing services closer to where
children and families live. We support establishing a satellite
court for children and families east of the Anacostia River.
The location of the current court best serves the interests of
the lawyers and judges and the other professionals that
practice there, not the 60 percent of the District's children
and the majority of the families and children that live east of
the Anacostia River that are in the child welfare system. The
likelihood families are reunited or children are freed for
adoption in a timely manner is directly related to a parent's
involvement in the court process. A satellite court would
dramatically increase parents' ability to participate in this
process.
Last, the bill provides badly needed resources, or
hopefully the bill can help spur badly needed resources for the
court's Family Division. It is with--this court has--our
current Family Division has received the lowest priority for
support for too many years. The current Superior Court is not
readily accessible to the city's children and families. They
have to wait in the hallways to have their cases heard, and
there are generally not any rooms available for social workers
and attorneys to meet with their clients. The current computer
system is not up to the task of tracking our children's cases.
Thank you for this opportunity today. Based on my 15 years
experience in working in child welfare, there is no doubt in my
mind that a Family Court will improve the outcomes for our
children.
Thank you.
Mrs. Morella. Thank you very much, Mr. Wells.
[The prepared statement of Mr. Wells follows:]
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Mrs. Morella. Thank you all for your testimony.
I guess I'll start with Mr. Harlan. I know that in the
recommendations--I guess those 10 recommendations that you
submitted from the Council for Court Excellence, you talked
about incentives, and it was pretty much the kind of question I
wanted to ask the previous panel, as we talk about burnout of
judges and the area's difficulties in attracting the most
committed people to learn and to serve in the Family Division
of the Superior Court. Are there some incentives that could be
offered that would attract more people and demonstrate
society's high value placed on such judges? And if any of the
rest of you would like to comment on that also.
Mr. Harlan. Yes, we believe incentives are an important
part of this process. As you point out, there has been a lot of
belief that the Family Court was, in fact, a second level of
importance within the Superior Court system, and it's quite
unfortunate. That has to change. The location, just as you just
heard, and the physical facilities, they are not conducive to
encouraging a person to want to be a part of this Family Court,
a judge.
Specific incentives, I think one thing--by moving to a
unified calendaring system where it is one family and one
judge, that it would be much more interesting to the judge not
to have to listen to just child abuse and neglect cases, but to
really understand--and you've heard the judge from Texas talk
about--to have the feeling of success when things work. Right
now they just get passed down and there's not that feeling. So
I think the whole attitude of the judges will change with that
fundamental one judge/one family unified calendaring approach.
There are some other suggested in our written testimony. We
had some other ideas for incentives, such as additional
guaranteed pay, paid study or training interval of 6 to 8 weeks
between terms for any judge or magistrate who signs up for a
second term of 3 or 4 or 5 years, whatever it is. That type of
incentive that is unique and recognized, but it is very
beneficial to the conduct of that judge's work. I mean, it's
not going and goofing off, but studying what best practices are
around the country and things of this nature that add to the
feeling of really, ``I'm on my game. I'm doing a great job. And
I'm being supported by a court system in a city that values
it.'' And I think all of those things will come into play as
really strong incentives.
Mrs. Morella. Are you finding some of these practices are
being employed in different parts of the country?
Mr. Harlan. I don't believe our report specifically found
that. These are ideas that were decided as we needed
incentives. If we were in your position, which ones would we be
considering? And then that's what we believe.
But let me, if I may, ask one of my associates here today
who is really working the vineyard on this--Priscilla, what's
the answer to that question?
Mrs. Morella. She was nodding her head affirmatively.
Mr. Harlan. She said there are some pieces of information
within our research that would focus on this.
Mrs. Morella. It might be very helpful for us----
Mr. Harlan. We will.
Mrs. Morella [continuing]. If you could get that to us,
too.
Mr. Harlan. We will be happy to.
[The information referred to follows:]
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Mrs. Morella. I'd like to ask Ms. McKinney then, as an
attorney, herself, whether she sees that there would be a need
for further enhancement of the status of Family Court judges.
Ms. McKinney. Well, I think that increasing the quality and
giving more resources to the Family Court, as a whole, would be
a great incentive to drawing Family Court judges into it. The
judges right now, the way the system is set up, simply don't
have the kind of support and resources they need to really make
the system function.
My group has not taken an official position on this, but,
in terms of the suggestions by the Council for Court
Excellence, I think all of those are excellent suggestions.
I also think that there is a big difference between someone
signing up for saying, ``Yes, I think I would like to be a
Family Court judge,`` and committing to 3 years, versus
committing to 5 years. I think the difference in those two
commitments could discourage a number of people who would
otherwise be excellent Family Court judges from taking that
leap. I think it is a huge time commitment, and, while we need
people who are willing to do that, you don't want to shrink the
pool so small that you exclude a lot of really qualified people
from becoming judges.
Mr. Wells. If I could add, Mrs. Morella, currently there is
no criteria that includes family law practice in selecting
judges in D.C. We have over 74,000 members of our local bar,
250 very-qualified attorneys work in child--representing
children in abuse and neglect cases. I don't know of one
attorney from what we call the ``CCAN Bar''--Council for Child
Abuse and Neglect--that has ever been nominated or selected to
be a judge in D.C. Court.
If you selected people to serve in our court that had
experience in this area, it would seem natural that they would
choose to serve on this bench.
Mrs. Morella. Thank you, Mr. Wells. I notice that they also
appear to agree with you, our panelists.
Very briefly, Mr. Harlan, because my time has expired.
Mr. Harlan. I just want to strongly support that.
Mrs. Morella. Yes.
Mr. Harlan. In the past several years that I have been
looking at the appointment of judges, virtually all of them
have come out of the U.S. Attorney's Office, with one or two
exceptions, and that may not be a good training ground for
family judges.
Mrs. Morella. Thank you, Mr. Harlan. That is a good point.
Ms. Norton.
Ms. Norton. I suppose I should move on to Ms. McKinney. Mr.
Wells has said the judges aren't appointed from family law
practice. One of the things we would certainly hope is that the
new pool of judges would include judges from family law
practice who would come and say, ``I want to be on this
court,'' and who would be appointed from outside, who would be
appointed to the court. So I'd like to ask you, as a member of
the Family Court Bar, do you believe the 3 year or the 5 year
or any other number of years would encourage or discourage
members of the Family Court Bar from applying or encourage them
to apply to be on the court?
Ms. McKinney. Well, based on my conversations with many of
my colleagues over the past couple of months, I would say that
having a 3-year extendable term would encourage a lot of people
to apply. I think if you make it a 5-year term there are going
to be a number of people who are discouraged by that.
And I would point out that it's not something that is
within our control. Just a month ago three names went over to
the President to be selected to fill one judge position in
Superior Court. Two of the three had family law experience. The
one who was selected to take the judge's position did not. So
it is a----
Ms. Norton. So it's not true that D.C. hasn't put forward
people without----
Ms. McKinney. That's correct.
Ms. Norton. Let's make that clear.
Ms. McKinney. That's correct.
Ms. Norton. If we had the right to choose our own judges,
we would now have judges on the Family Court who had Family
Court experience. It's not a big jump. She just testified that
three names were sent to the President of the United States and
he chose, what, the U.S. Attorney?
Ms. McKinney. Yes.
Ms. Norton. To be the court--I mean, I don't think that's a
stretch at all. One of the reasons why I feel so uncomfortable
involved in this process is I don't know what I'm talking
about. My job is to be a Member of Congress. I spend most of my
time on that and national matters. That's why I find your
testimony so--but I must say, if these are people who have been
in Family Court practice, why would they need--why wouldn't
they come forward with 3 rather than 5 years experience?
Ms. McKinney. Well, I think you have to look at the
difference between being a family lawyer and being a Family
Court judge. As a family lawyer, I have some ability to control
my case load. I have some ability to say, ``I'm overloaded. I
can't take this really difficult, challenging case right now. I
need to send it to one of my colleagues.'' You don't have that
as a judge.
The vast majority of our cases as practitioners settle, and
it is getting these cases and helping these people put their
lives back together and mostly settling the cases that is the
rewarding piece of my job.
If I then go and become a family court judge, all I see are
the cases that can't settle, whether it is because somebody is
mentally ill or somebody is drug addicted or there are just
these endemic problems within the family that make them
virtually impossible to solve, and as a judge that's all I see
every single day. That's very different from what I do right
now.
Ms. Norton. Well, I don't know. I don't know. Nobody has
done a survey to tell me what it is across the country. We do
look within our region, and there has been some testimony that
it is less than 3 years in the region. I tell you the only
thing that concerns me--I come to this an atabula rosa. I know
very little about family law and I know very little about
abused children in our city. I see very few of them. I see very
few mothers on crack. They don't come to the meetings. They
don't come to the town meetings.
What does bother me is this case load. What does bother me
is 1,500 coming in every year. That doesn't tell me how many
are in the system.
And what I can relate to personally without knowing what it
is like to sit day and day is the emotional--not the physical
taxing. I'm used to hard work. Lawyers are used to hard work.
But the notion that I'm playing God up here bothers me--that
she's 16 years old, she's still on crack, maybe she'll be off
by 18, maybe I should wait, but maybe the child gets to be 4
years old and it's all over. I am bothered by the talmudic
decisions that have to be made. And, while we all act as if
this is somehow, you know, just dealing with cases, unlike the
Sister, I don't have that sense that what I'm doing is
already--is always what God would want me to do.
Therefore, I do think that the notion that these are
emotionally taxing cases where people are deciding decisions
not for the guilty or the innocent, as with somebody who has
committed a crime, or as two grown-up people who want a
divorce, but two people who may look like they are equal in
every sense except that one needs a chance and the other
probably will want to be with a parent ultimately if that
parent had been given a chance.
So I don't know, and I don't pretend to know yet what the
answer is. I do want to lay out what concerns me and why I
can't approach these issues with this sense of rightness the
way I do a civil rights case or the way I do an environmental
case.
I would like your notion about--I'd like to ask about these
magistrates and commissioners, because here the court comes and
says, ``Oh, I'll make everybody a magistrate.'' Now, that's
going to cost money, and therefore you won't find me hopping on
board just to make everybody a magistrate.
As I understand it, the commissioner has to have the
consent of the parties to enter a final order, whereas a
magistrate is a quasi-judge, in effect, and can issue orders
without the consent of the parties.
Now, the only thing that interests me about this is that I
want this to happen to the Family Court.
Now, why should I want it to happen in the whole court? And
I understand that at least some of you have testified that we
should have magistrates in the whole court. I want to know
functionally why it is important that everybody have the right
to issue orders when our concern here is with family matters,
alone.
Ms. McKinney. Well, I think what I would say to that,
Congresswoman, is that you are talking about an issue of court
resources, and if we need, for example, more magistrates in the
Family Court, you don't want the chief judge to be prevented
from pulling from the already-experienced hearing commissioners
into the Family Division.
As it is set up right now, if we had Family Court
magistrates and then hearing commissioners, if we needed more
magistrates we'd have to go through the process of appointing
them, or if we had an emergency and a magistrate was ill and
out for several months, you couldn't then just pull someone
from civil or one of the other dockets and move them into that
magistrate's position, whereas if all of the, say, less-than-
judicial level--less-than-judge level judicial officers were
the same characterization, you could move them in and out.
But there's one other thing I'd like to say about the
judicial burnout, just to give you an example of how this
works. There is a judge in Montgomery County, where I also
practice, who spent--she actually helped set up the Family
Division of the Montgomery County Circuit Court and has
presided over it for 3 years. She was a family lawyer, she was
a family magistrate for many years, and then a District Court
judge. She spent 3 years in the Family Division of Montgomery
County Circuit Court. And I know her well. She's a wonderful
judge and advocate for children and families. But she says, ``I
need a break.'' And she'll go out of the Family Division and
she'll sit somewhere else for a couple of years, and then
she'll come back and she'll bring with her renewed energy, more
experience, new ideas, and a fresh perspective, and that is
something that the Superior Court really does right is bringing
in people.
We really do benefit from the fresh perspective and from
the experience that the judges have on the other dockets, and
that's something that I'd like the Congress to keep in mind
when they're debating this legislation.
Ms. Norton. Thank you, Madam Chair.
Mrs. Morella. Mr. DeLay, pleased to recognize you. And
thank you for sticking with this hearing all day.
Mr. DeLay. Thank you, Madam Chair. I find this fascinating.
First of all, Madam Chair, I would like to point out before
this hearing ends I'd like to thank Mr. Bob Gutman, who is a
private child advocate who has tirelessly promoted the
establishment of the Family Court in the District for many,
many years and has sat also through this entire hearing, and
probably has got sores on his tongue from biting his tongue so
many times during this hearing.
I wanted to point out to the Chair and to this committee
that in this hearing it is amazing to me that only the lawyers
and the judges and those connected to the Bar are supporting
the Superior Court's position. Every 1 of the child advocates
groups, the whole list here in your Consortium--21 different
organizations--support the draft that we are proposing here.
It is interesting, Ms. McKinney, how did you come up with
the number of years three?
Ms. McKinney. Well, I think if you look at some other
jurisdictions--if you look at Chicago, they have 2 years.
Montgomery County has 18 months. Baltimore has 1 year. P.G.
County has 2 years. I think throughout the country it varies
wildly, and we----
Mr. DeLay. Why did you pick three?
Ms. McKinney. Well, we discussed it amongst the lawyers in
our group, and I talked to many, many of my colleagues, and we
did talk to judges in various jurisdictions, because our
interest is in having judges who are not burned out, who are
not desensitized. And I will say that desensitization is almost
a bigger problem than burnout. Judges who see too many of these
cases start to apply a cookie-cutter approach to all of them,
and that's not what is in our clients' best interest. We want
judges who can look at every single case as a new and fresh
item.
Mr. DeLay. I'll bet Mr. Harlan wouldn't even agree with
that because he's gone to other parts of the country and
probably hasn't found that, or he wouldn't have written the
best practices that he wrote. And what your position is is the
vast majority of this country. There are only five States that
have 3 years or less. There are 15 States that have 6 years or
less. There are two States that have 12 years or less. And
there are three States that have life. And you don't find the
burnout that you describe in those States.
Ms. McKinney. But I think you have to be careful about
comparing apples to oranges. D.C. is one of only five that has
a Family Division that has a comprehensive jurisdiction. For
example, in Virginia they have the Juvenile and Domestic
Relations Court. It is a lower court. Anything there can be
appealed to the Circuit Court. And when it goes to the Circuit
Court it goes to one of--whatever judge is up. All the divorces
in Virginia go to whatever judge is up. There's no
specialization in Virginia. So I think you have to be careful
when you're citing statistics to make sure you're comparing
apples to apples.
Mr. DeLay. I am comparing apples to apples, ma'am, because
I have looked at the entire Nation and you've got a judge
sitting right over there that's sitting on the bench 12 years
and he's not burned out. He's quite the activist. And when you
say that judges are judges and not social workers, you make my
case. The problem is we have a system in the Superior Court of
D.C. to have judges that are not activists for the interests of
these children, and you picked--I think you picked 3 years
because it was your judge's proposal, their proposal, and that
is why you are supporting it, because you are supporting the
judges in the Superior Court. Is that not true?
Ms. McKinney. Well, I think what I would say is that our
interest as the representatives of the people who are going to
be affected by this legislation happen to coincide with the
court on a number of these issues. I think they would be the
first to tell you that we have been a tremendous thorn in their
side over the years. So I'm sure they would be amused to hear
that, your characterization.
But I have to disagree with your characterization of how
the judges in Superior Court are. It simply is not the case
that they aren't activists trying to do what is best for these
children. They are, but they are faced with daunting
limitations.
When you have, for example, the mother who refuses to go
for her forensic examination, well, that means the judge has a
lot less information to make decisions on. The judge can't--it
makes no sense for the judge to order someone to--the marshals
to take that mother and drag her to a forensic exam. It simply
makes no sense.
Mr. DeLay. Makes no sense for the judge to enforce the law
in his order?
Ms. McKinney. It's not that--no. In terms of what the
result will be, forcing someone to go through a psychological
examination is not going to give the court any results that are
useful. That's my point.
Mr. DeLay. You and I just have a fundamental disagreement
in what motivates people, because, quite frankly, your
characterization that people will sign up for 3 years but they
won't sign up for 5 makes no sense whatsoever, because if you
truly want to be a family law judge and you come from a pool
that is made less--that is elevated, quite frankly, in the
Superior Court--because right now you say that three applicants
and the U.S. attorney was picked from two family law because
you have no pool. Nobody wants--that is the system as it exists
now, and we're trying to change that system to be an incentive
for people to carry out a career in family law. You can't carry
out that career right now, and naturally you don't have--even
the President knows anything about reaching into a pool and
trying to entice family law lawyers to be judges. Currently,
you are enticing any lawyer to be part of a Superior Court, and
the lawyer might be assigned to Family Court and feel
oppressed, if you will, by the assignment to serve on a Family
Court bench. But if the lawyer is truly a dedicated person that
wants to deal with the family law, he/she can be recruited,
and, frankly, I would want, if I were a lawyer, I would want
the assurance that I'd have at least 5 years on the Family
Court Bench with options to continue further.
Ms. McKinney. Well, I think, though, that you have to look
at that example that I just gave you. No one can question the
dedication of this Montgomery County judge to children and
families. But what she is saying is after 3 years, ``I need a
break.'' And we all know that. The members of the Bar all know
how difficult it is. We are the ones who sit in D.C. Superior
Court day after day and see what is going on. We know how tough
it is. So we know that you have to give people an opportunity
to come onto the court and know that for 3 years they will be
committed and they will be sitting there, and if at the end of
3 years they're not tired, they're not fatigued, they will
stay. And we hope that it will be the case that, because the
resources are there and the court is reformed, that you'll find
a lot of people who do stay for 10 and 15 years.
Mr. DeLay. Well, that's one person you're pointing out
versus all the hundreds of Family Court judges across this
country that don't feel that way, and thousands, probably. It
just doesn't fit. And I don't know what that judge's personal
problems were, and I won't get into it--but, Sister Murphy,
could you tell me--you mentioned it in your testimony--the
problems we have with the Interstate Compact that you mentioned
in your testimony?
Sister Murphy. Well, the Interstate Compact papers are a
real thorn in our side. For one thing, we are an emergency
placement for children. The State of Maryland recently decided
that though they told us a year ago we did not have to be
involved in this because it was almost impossible, has changed
their tune, so now we are facing that.
The thing that upsets us the most is that children who had
been cleared many times to be adopted or go into foster care in
a different State, can wait 4 to 6 months for the Interstate
Compact papers, which delays placement for those children that
much longer. And that is probably the biggest thing.
We have a Metro system that covers a metropolitan area.
Nobody questions that. We have other systems in the
metropolitan area and nobody questions it. Why can't children
be placed back and forth in at least that metropolitan area--
D.C., Maryland, and Virginia? We're working for the same thing,
we should cut down some of these problems to make things flow
more smoothly for children.
I sit here and listen to everybody talking about burnout,
but I have been watching children and mothers and families
being destroyed throughout the 40 years that I have been
working in this business----
Mr. DeLay. Are you burned out?
Sister Murphy [continuing]. I have never felt burnout. I
feel anger and other things, but I have never felt burnout. So
if we have a judge who feels burned out from helping kids, then
I say he or she ought to just get out of the whole system. But
it just upsets me to no end to think that we're sitting here
worrying about judges' burnout when children are dying every
year. Read the Washington Post. We have children that float
back into St. Ann's for the second and third time after more
abuse. I'm sick of the whole mess, truthfully.
Mr. DeLay. I don't know that I can say it better than that,
Madam Chair.
I want to come back to this 3-year--Mr. Harlan, you wrote a
very good paper and your testimony is excellent. I appreciate
it. But I'm very curious, because I know what has been going on
in this town for the last couple of months, why you picked 3
years. Did someone call you and advocate 3 years?
Mr. Harlan. No, they did not. We picked a minimum of 3
years.
Mr. DeLay. Yes.
Mr. Harlan. I think our testimony would focus on the word
``minimum,'' as well. If you decided or if the courts decided
they wished to adopt a 5-year program, we'd say that would be
fine. We just don't believe anything shorter than 3 years will
work, and that's the way we approached it.
Right now it is quite a bit shorter. Three years is a huge
improvement, you know. It may be that we need to take that kind
of step to make the step toward the progress we want to achieve
and see how it goes, but we did emphasize a minimum of 3 years.
Mr. DeLay. OK. I don't want to take the chairman's time any
longer. I have plenty more, but that's fine. That's fine.
Mrs. Morella. I would be satisfied with a 4-year term and
for Members of Congress. [Laughter.]
I thank you all for your testimony, but you have been in
social work, I think, Mr. Wells, for about 6 years, and have
you--I mean, Sister Josephine has not experienced burnout but
has been angered, but how about you after 6 years as social
work.
Mr. Wells. I was a child protection social worker for 6
years, and that's true, but part of what motivated me to move
to where I am now is seeing what was happening in our child
welfare system, and, in particular, the kind of things that I
hope will motivate a judge that focuses on these cases will see
that when you have repeated cases that--I know Sister Josephine
sees children that come into her facility where she wants to
hang on to them for a little while, heal them, and help see
that they can get along their way, but she gets very frustrated
and angry if they start growing up in her facility.
Often our court is the safety net. It's the bottom line.
Someone has to catch these children. And if you send these
cases around the courthouse or if you don't pick up the trends,
the children are backing up at St. Ann's and they're beginning
to grow up in that 50-bed institution, then that safety net
does not exist. And with the turnover in social workers, with
the turnover in the other parts of the system, it is the judges
that pick up those patterns.
We've had Judge Arthur Burnet on our adoption calendar for
3, 4 years. It used to be the adoption calendar went every 3
months to a different judge and we were doing between 23 and 40
adoptions a year of children out of foster care. Judge Arthur
Burnet has been on this for, I guess, going on 4 years, and now
we are doing less--almost 300 adoptions a year. And I hope I
said earlier that we are doing less than 60 per year. So that
it's not hypothetical, the impact it has when a judge provides
a consistent application of the law and becomes creative,
becomes an advocate, and sees that when children are getting
stuck in the system, to help break through those logjams.
We need judges as advocate partners in being able to reform
the child welfare system, and when they move off the bench we
lose them.
Mrs. Morella. Yes. And, Sister Josephine you did give us a
list of the frustrations that you face with these youngsters
day after day. I don't know whether you want to prioritize what
the No. 1 concern is that you have, but I notice that among the
ones that you listed they deal with social workers, they deal
with lawyers, they deal with kind of an indifference again to
the importance of the child who is at the bottom of it. But if
you would give us what you consider to be the most important
thing that we should look at in terms of reform it would be
helpful.
Sister Murphy. Well, I personally feel that we should look
at, as we always say, the best interest of the child. Certainly
I think we all contribute to the problems of children, and I
think we have to work together to solve some of the problems of
children in the courts and everywhere else. I think all of the
folks connected are important--the social worker, the lawyer,
the judges, those of us who work with them in care, the foster
parents--and we have to listen to what is right for the child.
It always seems to me that in many of these areas we get
taken up with what is best for other people. In the legal
system many times with our children at St. Ann's decisions and
based on what is best for the mother. I had a social worker
present in one case to discharge an infant baby. The mother
comes in and you know she's high on drugs, but they're still
going to release this baby? Yes, they're going to release this
baby, and I realize if they don't, mother will lose her
housing? I mean, those are the kinds of things and it's always
the children who get lost in it.
I fail to understand why it is so impossible for judges to
come to grips with terminating parental rights. They don't
think about those children who are out there suffering the
abuse over and over again. They don't think of the children who
are getting older and older in the system and that nobody is
going to want to adopt them because they act out so much. We
have so many children who act out sexually at St. Ann's who
nobody wants to adopt because they have been sexually molested
for so many years. We have girls in our home at St. Ann's--one
child who is 17 years old had been a paid prostitute from age 6
to support her mother's drug habit. So why can't a judge make a
decision to determine parental rights if this mother has been
on drugs for umpteen years. As I said, this one mother had been
in 19 drug treatment programs. They were going to return this
baby to her. Why can't the courts decide to terminate parental
rights? That is probably one of my most frustrating things.
That's why I fought for that law to be passed, which hasn't
done much good. It is true the adoptions have increased, and I
am grateful for that, but I still don't think they are
terminating parental rights quickly enough. I don't think they
are looking at the reasons that law gave why you don't even
have to bother about waiting. You could terminate parental
rights almost on the spot. Children are murdered, and yet they
allow more children in the house. We can have three children
badly abused from a family, but if mother has another baby, she
keeps that baby. The law says she can keep it until she does
something to it. So everybody sits back and waits until it
happens. A child came in the other week with a fractured skull,
another one with a broken wrist. So just wait until they do
something harmful to the child and then they place them. Those
are the frustrating points to me.
Mrs. Morella. Do they ask for your opinion or do they give
you an opportunity, or is it just, ``We automatically want it
returned to the mother because she will lose her check,'' or we
think that this is ultimately what would happen?
Sister Murphy. That can be one of the reasons.
Mrs. Morella. But, I mean, do they consult with you? Do
they ask you? Do they say----
Sister Murphy. No. We have at times written to the judges,
and I have even gone down and testified. On one occasion two of
us--two of the Sisters--went down with the social worker, who
was feeling the way we were, and spoke to that judge. We
pointed out all the things that had happened to these children
in their home, but the child was released back to that family.
I think in my testimony I said we had the lawyer come out
because I felt so strongly about that child; 2 days later, that
child went home. And the only thing you can get from the Social
Service Department is, ``Well, it's a court order. Anything
that is a court order you have to obey.'' So it is very
frustrating.
Mrs. Morella. Thank you for the work that you do, too, day
in and day out.
Ms. Norton.
Ms. Norton. Thank you very much.
Well, I agree with you, Sister Josephine, about essentially
erring on the side of the child, as painful as that is, rather
than keep a child, and for a very long time, despite the notion
of best interest of the child, it seems--it appears that it is
very hard to believe, especially since some of these mothers
are very young, that you ought to make that decision. It's very
reluctantly that I have come to the conclusion that we really
have no choice now. We are paying for erring on the side of the
parent, it seems. There's somebody standing before you that can
invoke your pity and you see all the hope there. I do agree
with you. I think the floating back and forth goes a lot beyond
the courts.
I must say it now, and I hope everybody hears me: we have
been talking about the court. That floating back and forth has
much more to do with Child and Family Services than it has to
do with the court. When the court finally has to get in it
again, it is, of course, because the mission of the Child and
Family Services to provide the services if the child is put
back--for example, Brianna Blackman. This child never should
have been put back in the first place, but as we did the
investigation of that case we found that the mother appears to
have been borderline retarded, had never been provided the
services, herself, and had found herself somebody to live with.
This mother might have been completely benign. It is alleged
that the murder was done by somebody she was living with. But
Child and Family Services never took this borderline retarded
mother, who might, living with somebody else, have been able to
take care of a child if there was somebody else there.
So I must say we can talk about this court all we want to,
but we are handing--we are spending money on the court and it
is overdue. The District is about to spend a great deal more
money on Family and Child Services, but what it is getting back
has more to do with the problems you have raised than anything
we could possibly do with this court, because in many ways the
court is forced--we believe it is forced into what it is doing
because Child and Family Services is not going to provide--
can't provide an alternative parent, can't find another foster
home, and unless they, in fact, essentially accomplish
revolutionary change, I can't believe that we are going to see
much difference, even given the time we have spent on the
court.
I don't even want to go through the burnout. All of that is
such conjecture about how many years. My good friend who has
had to leave--and he stayed so long he deserves all of our
gratitude--who is so dug into the number of years is a wiser
man than I am a wise woman. All I'm guided by, I'm guided by
one thing, one thing. I don't know about the judges. I haven't
talked to whether they get burned out. I know who do not stay
on the job--social workers, people who have gone to school,
studied, know full well when they take this job they are
dealing with the most troubled people in the society come and
they go, and they go so fast that it makes your head spin. And
that's the only evidence I know, because we have had before us
Child and Family Services, because I got a bill passed through
here that required any receivership to practice best practices,
and we got the figures in the record about the turnover in
social workers. So maybe the judges are iron men and iron women
and they can stay in there for as long as you want them to, but
I am very worried about taking all discretion from people and
deciding that if we just tell them in iron numbers what to do
it will all come out in the wash. That is not my experience.
As for--and I have to say on the record the notion that
only lawyers want it to be 3 years and all the people who
really care about children want it to be 5 years, I just need
to say--and I'm sorry Mr. DeLay isn't here--I began--he began
with a very fixed notion, had to be 15 years, had to bargain
him down, based only on the numbers. I began saying, ``I don't
know.'' And I still don't know. But I think it is wrong to say
that only people who spend their time as lawyers would think
that there is a minimum number that's less than 5 years. That
is wrong. Nobody deserves that here and I will not tolerate it.
And just let me put on the record who also said 3 years--the
testimony of the Council of the District of Columbia, who knows
our children better than anybody else, said 3 years. The Mayor
said 3 years. And none of them were dug in so they said, ``It
must be 3.'' They just said in their sense is that's right. You
know what? That's only my sense. I don't know if it is right. I
do know that I despite dogmatism, particularly when it comes to
dealing with children and families, and especially children and
families which are not like your children and families because
they're not like my children and families. They're a lot more
troubled than any children and families I run up against. So
I'm going to approach this with great care.
Now, I have a question that I just want to be clear,
because it is my last question for Mr. Harlan, when he talks
about the minimum numbers of judges and he talks about
flexibility. Normally I'm for flexibility. What we're trying to
do here is to close up some of the holes. For example, the
reason we say ``one judge/one family'' is we don't want
somebody to decide, and the hole gets bigger and bigger, and
then we find that one judge/one family isn't there at all any
more.
In that regard, for example, I have not heard answered
here--I think a question was put on whether or not, at least
for purposes of abiding by the child and family--I'm sorry,
Adoption and Safe Family Services Act, if somebody, a family
was close to the goal of permanency, as mandated by that act,
perhaps at least then the judge ought to be able to stay with
the child.
I just want to make sure we don't have unintended
consequences written into the act when we know better.
I was very concerned about the things that the judge--his
examples. And I need to have answers to that, because he had
some examples that didn't even go to permanency--went to where
children may not ever be permanently, where somebody may be
suicidal, for example. I don't want to take responsibility for
saying, ``The thing says there are no exceptions to one family/
one judge.'' That is the one principle that we all agree upon,
but I am very reluctant to say that if there is a child or
family that nobody has been able to deal with but you are
keeping them alive, you wouldn't dare change judge and say,
``I'm sorry, my 3 years are up. This is a nice judge. I will
make sure that I brief the judge.'' I wouldn't take the
responsibility to somebody who is despondent over that, so I'm
a little worried about the inflexibility that God is sitting up
here and God knows what to do and he is telling you all what to
do and it is going to work out this way, just trust in me.
Don't trust in me here, because I'm not that sure.
And so I am concerned about the exceptions. I won't--you
know, I won't do the law school hypothetical that is in me on
each of you, but I will say to you I do not believe that Judge
King's examples were answered. Yet, what I think we have to do
is to keep from--we have to keep from developing a loophole. We
have to have such a strict standard that the judge's
discretion--and I think in the bill he has none now, does he? I
see you are indicating no, that he has no discretion. I am
not--at the moment I am not willing to take responsibility for
that. I'm not willing to say that permanency is not a reason to
say, ``Look, we've got 2 more months to go. You know more than
anybody else. It would take me at least that long to even learn
what that case is about, so I'm not willing to be that
inflexible.'' And I'm not willing to say that if we have a
child we don't have any--that the child is sent back here time
and time again, and neither St. Ann's nor anybody else has been
able to do anything with this child, but the child somehow
relates to this judge, that judge shouldn't be an exception. I
just--I mean, we don't do that anywhere in the judicial system,
and I'm very reluctant.
What I need your help on is, if any of you feel my
reluctance that an ironclad rule like that might produce an
unintended consequence, you can help us by suggesting, if any
notion of exception is to be written into the law, how to make
it so tight that there would simply not be discretion except in
the most extraordinary circumstances. I would appreciate your
help on that. I recognize that's almost a drafting notion, and
unless somebody can suggest language to me now, I would
appreciate any thoughts you would have on that. And I would
appreciate any thoughts you could give me on the notions that
Judge King laid out, the examples he laid out, and I would be
willing to submit them to you to ask you then what would you do
in these circumstances.
Do you think that such a person might go, whether 5 years
or 3 years, should leave the judge? After all, a judge who has
been there, let us say, for 5 years could have gotten the case
last month, could have gotten the case last year, could have
gotten the case 6 months ago, or could have had it for 5 years.
I mean, if we want to sit down and really get analytical
about this, I can spin your head. Instead of doing that,
instead of trying to think of each and every circumstance that
could possibly appear before a judge, we need to have language
that, to the best of our human capacity, would allow us to
maintain rigidly one person/one case without doing harm because
we, ourselves, have been all knowing.
On minimum number of magistrates and judges, do I take your
testimony at page 4, Mr. Harlan, because you say--you strongly
suggest that the appropriate level of judicial manpower be set
on an annual basis by the judge. Do you mean over and above the
minimum number of Family Court judges, because you suggest that
if the Family Court case load drops--you are an optimist, Mr.
Harlan--drops, that other divisions might--in a real sense, I
think that's what we are trying to avoid, taking from the
Family Court the number of judges and putting them some place
else on the theory that this is such an important area of the
law that it simply needs to have the same number of judges
there always, and, if anything, may need more judges. Can you
envision the notion that--I mean, let me put it to you this
way: if the Family Court case load dropped, you could then
handle Family Court cases more quickly. Wouldn't it be better
to do that than to take those judges and use them elsewhere?
Mr. Harlan. Quite frankly, the determination of how many
Family Court judges is required on an immediate, in the first
step, is what the 90-day plan is all about. Now----
Ms. Norton. So we're going to have to fund judges, you see,
for this.
Mr. Harlan. I understand. I understand. But, looking down
the road, when the chief judge comes before this committee and
the Appropriations Committee to talk about the court's funding,
it would seem to us that the chief judge, with the goal of
adhering to the Adoption and Safe Families Act of 1997 as far
as the pace of process here, that the chief judge would be in
the best position to know how many Family Court judges are
required to achieve the goal.
Looking down the road, you know, if the system gets better,
fewer children are entering the system because let's assume
that there's some remedy to the crack cocaine epidemic that
caused the big spike that he described. I have no idea what
will happen in the future, but hopefully things might get
better and we might not need as many Family Court judges going
forward.
All we're saying is that the chief operating officer of
that court should have the ability to determine what that need
is, translate that need into the number of judges required, and
be subject to your oversight and subject to the appropriations
process funding. That's all we're saying.
Ms. Norton. Does that include more judges?
Mr. Harlan. Pardon me?
Ms. Norton. Does that include more judges?
Mr. Harlan. Sure. Of course. If it gets worse, they would
need more judges, whatever the situation is.
Ms. Norton. Well, how do we determine--this bill has to be
passed before the appropriations if we are to really do our
job, and we will need more judges to make this anything but a
joke.
Mr. Harlan. Undoubtedly that's true at this time, but
rather than having the cases spread out, they will be
concentrated. That means pulled out of the other, let's say, 59
or 70 judges. Let's say there are 19 judges going to the Family
Court. There will be some load shifting that way that has to be
accounted for, so that non-family court judges that are
currently hearing child abuse cases are no longer going to hear
them. There can be fewer judges needed to handle the civil and
criminal processes.
So, the workload balancing is one of the needs to be
studied each year. It changes. That's all we're saying. I mean,
you've got a 90-day program for him to come up with what he
needs to have as far as the appropriation goes for this first
period of time. That should be subject to review each year on
an annual oversight basis.
Ms. Norton. Thank you.
Thank you very much, Madam Chair.
Mrs. Morella. I want to thank you all. As Sister Josephine
said, the bottom line is caring for these children. And I would
also appreciate--the subcommittee would appreciate the language
that you might be able to craft that would take care of that
concept.
We will be submitting some questions to you, also, and hope
that you will be able to answer them so that we can come to
grips with this.
I notice that even those who thought 3 years would be
appropriate, that it did say ``minimum,'' as Mr. Harlan had
stated. And so what we are looking for is people who have
continuity--who will give continuity to it and reflect the
concerns and caring.
I want to thank all of you for being here all afternoon,
for your commitment to this project, and hope that you will
continue to work with us so we can come up with something
that's going to work. Thank you all very much.
Our subcommittee is now adjourned.
[Whereupon, at 4:45 p.m., the subcommittee was adjourned,
to reconvene at the call of the Chair.]
[Additional information submitted for the hearing record
follows:]
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