Earning Your Keep In Foster Care: The Court Decides

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Illustration by Christine Ongjoco.

Attempting to prove to a Santa Clara County court late last year that she had earned her monthly foster care check, a South Bay teenager couldn’t quite remember all the places she had applied for work. There were prospects at Chick-fil-A, but she missed her background check. Her social worker had lost faith in her word. 

Too little, too late, a juvenile court judge would rule on that typical December day during the calendar reserved for “nonminor dependents.” Until she had a job, her monthly support checks would end.

Another young woman in foster care bustled into dependency court later that morning, cuddling her infant son. He was dressed smartly in a red plaid button-up and elastic-waist baby jeans. The pair had spent the past week at a 90-day residential treatment program. With classes and counseling, mom was doing better than ever. She just received her six-month sobriety chip. And she could show the court she was removing barriers to work and remained eligible for foster care payments provided directly to those aged 18 through 21.

“Oh, wow, there’s so much we can say today,” gushed her attorney, Christine Berbelis, adding that this was the person “we all knew existed. It really is a testament to how much a baby can save your life.” 

When the judge asked the young woman to explain what she’d learned in treatment, she responded: “Patience. The old me would have cussed everybody out. The new me walks away and goes to change his diaper and ends with kisses.”

Before leaving court that day, she plucked a stuffed animal from a big box of giveaways, and then, on second thought, replaced it with a teething ring.

Privilege or entitlement? 

Unlike foster care for children, extended foster care serves young adults, and the arrangement is conditional. Participants must prove in court that they have a disability, or are attending college, working 80 hours a month or removing barriers to those goals. 

Since the coronavirus pandemic began its deadly ravaging of the economy in mid-March, under Gov. Gavin Newsom’s orders, these requirements have been loosened for six months, to ensure benefits continue to reach people who have lost jobs or had their schools close. 

Those eligible can receive checks of up to $2,000 a month. Unlike children in foster care, they can decide where they live, and with whom. And because they are adults, their lawyers have to tell the court not what they think is best for their clients, but what their clients want. 

In court hearings at least every six months, the legal issues center on whether 18-to-21-year-olds are meeting participation requirements. But these practical questions quickly become philosophical. Is the young person facing understandably rocky times, or are they being outright disobedient? Are upended plans age-appropriate mishaps, or simply excuses? Does a young person need prodding, or extra patience? 

Is extended foster care a privilege or an entitlement? 

Inside Department 68

The Santa Clara County Superior Court is one of the few outside Los Angeles with a calendar dedicated entirely to adults in foster care. It’s located in the newly constructed Family Justice Center in downtown San Jose, a towering, $200 million complex lined with pillars. The new courthouse replaced the drab Terraine Street courthouse, a squat former bank known as “the dungeon.”

Inside, a lobby of travertine marble features brightly lit display panels directing the public to “justice partners,” and offices where they can see a doctor or pick up donated clothes, blankets and sleeping bags. The third-floor Relaxation Garden offers an atrium ringed with mini-bamboo.

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The Santa Clara County dependency court was previously housed in a squat, drab building known as “The Dungeon.” Photo: Karen de Sá

At the helm of Department 68 is Shawna Schwarz, the no-nonsense supervising judge in the juvenile dependency division, where she’s been since 2001. A former children’s attorney, Schwarz has spent two decades in a legal field relatively few colleagues on the bench can — or care to — handle for long.

She can be tough all around. One of her first edicts as a judge was the requirement that all attorneys wear suit jackets. But her courtroom is lined with Walt Disney-themed posters, and Schwarz, 57, sends young people off with inspirational advice: “Keep pounding the pavement. Keep an open mind. Think of the long game. Good luck!”

A reporter working for The Chronicle of Social Change was granted access to this confidential courtroom for one day in December, on the condition that no young people be identified. Schwarz heard 16 cases that day. In half of the cases, young people showed up to speak for themselves alongside their lawyers. Most were not complying fully with the extended foster care rules and faced imminent termination. 

Attorney Lauren Gleason was among the first to speak. Her client had two recent pay stubs from Ross Dress for Less, for 39.11 and 41.39 hours. But social worker Anne Hollywood with the Department of Family and Children’s Services wanted the case reviewed again. The young person had struggled for two years to meet the requirements, and “the stakes are higher now because she has a daughter and she needs to provide for her.” They were living with an aunt and uncle, but only for another month before the relatives planned to move. And although she’s signed up for transitional housing programs in Santa Clara and Alameda counties, the wait is six months.

Meanwhile, she is almost 21. Does she know the requirements for government help after age 21 are even more stringent, Judge Schwarz asked? “I have told my foster youth that,” Hollywood replied. “I’m not sure it really clicks with them.”

For young adults due in court during the pandemic closures, Schwarz, along with the attorneys and social workers, have been staying in touch about clients and filing the paperwork to continue services and set their next hearings for three to six months out, depending on their status. All petitions to enter or re-enter extended foster care have been granted, Schwarz said, and she has not terminated any foster youth’s benefits.

“This agreement was created to be a win-win-win,” Schwarz said in a June email. “Youth were given a ‘pass’ if they were struggling, no questions asked; counsel were able to get cases done and give input on which youth were in compliance; and the court was taking care of business instead of adding to the backlog.” 

Defining best interest for adults

There are no parents or parents’ attorneys at hearings for “nonminor dependents” because they have no legal guardians. Social workers appear alongside attorneys with the county counsel’s office. And young people can attend, call in by phone or video or speak through their attorneys. 

Under California’s Welfare and Institutions Code, their lawyers are not bound to present their client’s “best interest” unless health or safety is in question. But they can acknowledge concerns, like when a young person wants to move back in with a parent who once abused them. Ideally, those conversations happen well before the hearing, said attorney Whit Griffinger, who represents adults in foster care throughout the greater Bay Area.

“They’ve usually made a system in their minds about whether family is viable or not, and if they have, then I want to explore that,” he said. “Then we can accept the decision and put enough safeguards in place.”

Only one young person in Department 68 that day waited outside the courtroom with loved ones. She rested her head on the shoulders of two foster moms. They stroked her hair, giggled quietly together and planned meals and weekend activities with a warm familiarity.

She had a lot to tell the judge. She’s about to graduate high school and has every intention of going to college, possibly to study business entertainment. She worked at Safeway, cleaning carts and bagging groceries – and cleaning up vomit in the bathroom sometimes, she noted.

“I didn’t want to hear that,” Judge Schwarz quipped with a chuckle.

“I would like to graduate to the floral department,” the teenager replied. “But I don’t get to pick.”

She had just turned 18, and after wishing her a “welcome to adulthood” belated happy birthday, the judge explained that the payments that had been going to her foster parents would now arrive in the mail each month as a check with her name on it.

Depends on the judge

Legal experts who have watched extended foster care in California since its inception a decade ago agreed: Despite good intentions, too often hearings that could be supportive have become a referendum on compliance, with young adults treated more like they’re on probation than surviving with a safety net.

“I’ve seen a lot of judges who were pretty hostile and saw it as a handout to undeserving kids at the expense of taxpayers,” said Raúl Arroyo-Mendoza, a Contra Costa County juvenile public defender. “I’ve heard judges say, ‘Why are we going to give all this money to this kid? He’s probably just smoking marijuana.’”

Carolyn Griesemer, executive director of Children’s Legal Services of San Diego, said some judges take a tough-love approach, ordering terminations the minute young people are out of compliance. Others “wag their fingers, saying, ‘Come on, you really need to show up at these job interviews. If you don’t, I’m going to drop you next week.’”

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Judge Shawna Schwarz presides over Department 68. Photo courtesy of the Santa Clara County Superior Court.

Greisemer, who has four children in her family, said the rules and expectations are different for each. By the same token, “you can’t say the 350 children in foster care here should have the same level of help. Their needs are different, their levels of trauma is different, and – what we hear at trainings – is that every county handles it differently.”

Schwarz, though often characterized as a tough judge, understands that the impacts of the pandemic are hitting adults in foster care particularly hard, and she said in a recent interview that she is supportive of giving these struggling young adults a break during this historically challenging moment. She recognizes that they often hold the kinds of jobs that are now being furloughed or eliminated, and that distance learning could present unique challenges for this population. 

“I believe this process has taken the pressure off the youth for now, during this time when many people are experiencing stress and anxiety,” she said.

Stress and self-sabotage

Before the requirements were temporarily suspended during the pandemic, when young people were not meeting extended foster care requirements, they could be brought to court as often as once a week. Many court professionals view this as necessary pressure and an important accountability measure. But advocates say it can be counterproductive – especially when the message feels more like a scolding for failures beyond their control. 

One young person appearing in the San Jose courtroom, for example, had applied unsuccessfully to Burger King, Subway, American Apparel, Marshalls, Starbucks, Shoe Barn, McDonald’s, Safeway, Jack in the Box and Target. 

“One hundred percent of the kids in child welfare have experienced intense trauma,” said Brian Blalock, newly named cabinet secretary for New Mexico’s Children, Youth & Families Department. “It manifests itself in self-sabotage behavior, anger and feelings of hopelessness – so you can’t follow through with the things you know you have to be doing.”

Blalock, a former Bay Area children’s attorney, said so much in daily life can be triggering, and then their reality becomes: “I can’t get out of bed even though I know I’m going to get fired if I don’t.”

The repeated hearings can “replicate a lot of things that cause trauma,” Blalock said, “conditional care, conditional parenting, and if they’re not measuring up, the support goes away.” 

The next young man heard in Department 68 was scheduled to have his benefits terminated within weeks. Since his last hearing, he had met with an academic coach for eight hours and completed 69 assignments. But he was still short on the necessary academic credits to be considered compliant.

“The closer the hearings are, the less sleep I get,” the young man said. “It’s not always feeling like motivation. It’s feeling like additional stress, and also depression.” 

Social worker Hollywood said she understood how hearings every week or two weeks must feel. But she agreed with the judge that he needed that incentive. He is “highly capable and highly intelligent,” she said. “He’s made more progress in school in the last two months than in the past two years.” 

The judge, attorneys and social worker next heard a statement from the County Counsel’s Office: “We all know (he) suffers from depression and we’ve had various discussions about whether that’s debilitating for him.”

The young man again implored the court “to allow me to prove I can take care of my own business and earn my place in extended foster care.”

But after weighing the various entreaties, the judge concluded he had done well with “short continuances,” and she scheduled the next hearing for eight weeks. “Unfortunately, I feel like you work a little better with pressure,” she said. “The whole point is for you to put pressure on yourself so I don’t have to.”

Astounding optimism on full display

Research shows that, despite their difficulties, young adults in the state who’ve left foster care are notably positive and forward-thinking. University of Chicago researchers reported 92% of the 21-year-olds they surveyed felt optimistic about their “hopes and goals.” More than half were in romantic relationships, and those that were overwhelmingly described their partners as committed and capable of expressing love and affection. The most positive responses involved questions about their good qualities – being able to achieve anything they set their mind to, and feeling they could exert control over their futures. 

A forgetful fellow was next up in Department 68. And although he too faced immediate hardship, he was cheerful and peppy. He had lost his wallet and came down with a terrible cold. He had withdrawn from classes at Mission College – he said he “wasn’t doing too good” in biology and “lost motivation.” And he didn’t have quite enough hours at Domino’s Pizza. 

But he was trying to get more hours from his new manager. In the meantime, he’d applied to Five Guys and Panera Bread and wanted to get a driver’s license. It recently took him two-and-a-half hours to walk home from school. 

With the astounding optimism researchers have documented on full display, the young man said he “definitely” wants to get back into college to study music producing. He’s also thinking about a change of profession, possibly to be a history professor. On the other hand, he said, he might just try to get a desk job. 

The judge zeroed in on that. “Do you have the right clothes?” Schwarz asked. “Make a good impression because you have the personality to do a desk job. You’re nice, you’re engaging.” But she also gave him a friendly chiding, reminding him he had to stop losing things, like his wallet. 

“And my hair pick!” he added, which he also recently lost.

The new Santa Clara County Courthouse boasts a marble lobby and bamboo-ringed atrium. Photo: Karen de Sá

Going back to mom 

Under California law, young adults can receive payments to move back with parents who had previously lost parental rights due to abuse or neglect. At times they’ve longed for such reunions, no matter how painful the parents’ past behavior – something outsiders can have trouble comprehending. Other times, there’s simply nowhere else to go.

There is no argument about continuing $1,000 monthly payments to the next young man on the calendar. He’s been suicidal and was just released from a locked facility.

Since turning 18 in foster care, he’s now back with his mother – to the relief of all concerned.

“Mother is with him almost all the time, she doesn’t believe him to be in any danger at the moment,” the court is informed. “Mom is very equipped.”

Court officials were less confident in another such reunion. The young woman, now 21, was described as “one of the youth who had a child who never used not having child care as an excuse for not taking care of business.” She worked two jobs and had been in therapy for three years. 

Remembering “all the reasons this case came in,” Schwarz was “pretty shocked” that this self-sufficient young mother would return to the home she’d been removed from years before. 

“We have a number of nonminor dependents who go back to live with their parents, but it’s not usually as shocking as it is in this case,” Schwarz said.

Appearing in court

Although young people are encouraged to attend hearings, they have plenty of reasons not to, aside from the difficulty of leaving work or school. It can be a hassle getting to the courthouse and waiting around for hours for your case to be called. When you do appear, sometimes nothing but a scolding awaits you.

Retired Los Angeles juvenile court Judge Margaret Henry said some young people may need just that. “But for the most part what they need is encouragement. My philosophy is much more if kids aren’t doing well it’s the fault of the system – OK, how did we mess you up?” 

Henry, an architect of the state’s “nonminor dependent” calendars, said she rarely had a young person “gaming the system,” or misrepresenting themselves. The worst case she could recall was a teen who invented a road closure as the reason he had failed to show up to his hearing.

Henry said social workers with genuine interest in working with teenagers could make all the difference. But, she added, “sometimes they’ll say, ‘He’ll be 18 in a month, so he has to be responsible, he has to be held accountable. “And I’d say, OK you don’t belong here. You don’t belong in this work.”

‘People are not listening to me’

The last case of the day calls in to her hearing. At age 20, she has had it with foster care. She worked at Sprouts Farmers Market and a middle school. She hadn’t quite hit the 80-hour a month minimum, but the court was satisfied.

Still, she told her lawyer she wanted her case closed. Christine Berbelis noted her own opposition to her client’s position – she hoped she’d stay in the system and continue receiving support. Then she introduced her to speak for herself. 

“I’ve been in the system for a really, really long time,” she said on speakerphone. “I have been trying my best and I just don’t feel like people are understanding where I’m coming from and I don’t want to be somewhere where people are not listening to me.”

Hollywood affirmed that the two had struggled, with the social worker setting expectations she didn’t like or agree with. It was also hard when she came on the case, and the young woman lost connection with a previous social worker she had grown close to over time.

But Hollywood tried to reassure her she was doing more than what was expected; 10 months away from her 21st birthday is not the time to walk away from support. 

“We don’t need to bother her,” Hollywood told the judge. “I’m hoping she’ll choose that check going into her bank account.”

Before a hearing was scheduled that would end her foster care benefits on Jan. 16, Judge Schwarz recalled the last time she saw the young woman, a month ago. “The last hearing in November was a rough hearing,” she said. “You left here very upset.”

Suddenly the voice on the phone began to crack. “I felt very unheard, even though I said those things and showed proof,” she said. “Nobody seemed to care.”

“That must have been pretty frustrating for you,” Schwarz said. 

“Yeah, it was. I don’t want to stay here and get the check if I’m going to feel like crap every three months,” she said. “The thing about extended foster care is, it’s a deal, but it comes with strings attached.”

Karen de Sá is the Safety Net Reporting Fellow for The Chronicle, and a former investigative reporter for the San Francisco Chronicle and The Mercury News. She can be reached at kdesa@chronicleofsocialchange.org.

Sara Tiano contributed to this article. 

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This is the third in a four-part series by The Chronicle of Social Change was reported and written by Karen de Sá, Sara Tiano and Katarina Sayally, with editing by John Kelly. Christine Ongjoco created the illustrations. The project was mostly reported before the coronavirus pandemic struck, and included months of ongoing communication with current and former foster youth, observations in two confidential courtrooms and interviews with more than 60 child welfare experts.

Correction: This article was updated to reflect that Judge Shawna Schwarz is 57, not 60. 

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