A Tale of Two Fridays

And the gap for California foster youth that lies in between.

It is Friday, May 4th, at the Richmond Courthouse. Sun spills into the trash-strewn courtyard as the immediate future of soon-to-be 19-year-old foster youth David C. is decided within.

On Sunday, David will turn 19, throwing into question his eligibility for benefits provided through a celebrated California law that extends foster care to age 20. His story encapsulates a dilemma facing more than 2,000 similar foster youth throughout the state.

In 2010, California passed Assembly Bill 12 (AB 12), which is geared to take advantage of matching federal funds to extend foster care. In the fraught negotiations to get the bill passed, legislators opted to save money by phasing the law in year by year to age 19 in 2012, 20 in 2013 and 21 in 2014 if the legislature approves. The phase-in strategy has created a funding bubble wherein the state relinquishes funding for the 2,166 foster youth who turn 19 in 2012.

For youths like David, the decision whether or not they benefit from the stability of extended foster care past their 19th birthday now rests in the hands of three institutions: the juvenile dependency courts, the Boards of Supervisors in each of California’s 58 counties, and the State Assembly Committee on Appropriations.

In the span of three weeks — ironically falling during National Foster Care Month — the level of each institution’s commitment to foster youth will be tested by a legal challenge, media scrutiny and direct political action by foster youth themselves. Through it all emerges the possibility that this “bubble” may in fact burst; and the portrait of a frayed social services safety net wherein foster youth like David are often the ones left paying the cost.

David’s challenge to County Counsel’s attempt to cut off services was the first such case to come to public light, and its outcome will have a direct impact on the fates of the 2,000 “bubble” foster youth who will turn 19 this year.

This reporter and another, Theresa Harrington of the Contra Costa Times, had been briefly admitted into the hearing room that particular Friday –the day that the court would determine whether or not to terminate David’s case. David had requested our presence, but just as quickly as we entered the still courtroom, Deputy County Counsel Patricia Lowe objected and we were told to get out.

Code Section 346 of the California Welfare and Institutions Code, likely behind Lowe’s objection, states that while the public generally should not be admitted to cases involving minors, “the judge or referee may nevertheless admit such persons as he deems to have a direct and legitimate interest in the particular case or the work of the court.”

In a 1991 appellate court case, San Bernardino County Department of Social Services v. Superior Court, the court said that while the child’s best interests should be the primary concern, the “important social values” advanced by the press are also important. It added that lower courts should grant the media access, “unless there is a reasonable likelihood that such access will be harmful to the child’s or children’s best interest in the case.”

In January of this year, the Presiding Judge of the Los Angeles County Juvenile Court, Michael Nash, issued a blanket order presumptively opening that court to the media. Under the order, members of the press may attend hearings and can only be excluded if a party objects and the court determines that there is a reasonable likelihood that press access will be harmful to the child’s best interest, based on the factors listed in the San Bernardino County case.

But Contra Costa County’s stance on transparency in the courts is much more restrictive than that of Los Angeles County. Unsurprisingly, the differences between counties don’t stop there and emphasize the wider variance in support for transition-aged youth across the state. Los Angeles County intends to keep its 853 “bubble” youth in care, while Contra Costa County is terminating the cases of the 43, who – like David – turn 19 this year. While both the County Welfare Director’s Association and the California Department of Social Services said they hadn’t surveyed counties to understand their policies in regards to bubble youth, research conducted by Fostering Media Connections and the Contra Costa Times found that San Francisco, Santa Clara, Alameda and San Mateo Counties will keep youth like David in care.

David walks out of the courthouse with his attorney Darren Kessler and Shawn Nunn, a private social worker with a non-profit organization called Triad Family Services that subcontracts casework with the county.

The presiding judge, Joni Hiramoto, terminated David’s case but granted a 90-day stay so that David could file his appeal.  David, who according to court documents tested positive for methamphetamine at birth and was subsequently diagnosed with Asperger’s Disorder, is concerned about the judge’s order.

At first, he thinks he will have to pack up and leave his foster home that day, but Kessler re-assures him that the stay means he can remain in his Contra Costa County placement until August 3rd, nearly two months after his high school graduation.

“At the end of the day she is splitting the baby,” Kessler says of Hiromoto’s decision. “She is giving him what he needs in the meantime.”

David is relieved that he won’t have to move out before graduation. He looks forward to starting at UC Berkeley in the fall to study physics, but remains perplexed about the fate of the other kids in his situation. “It is hard, very hard, tricky,” he says.

But the fight for David’s short-term stability isn’t over yet. On Wednesday, May 9, Triad social worker Shawn Nunn says that David’s county social worker, Christopher Johnson, called with some startling news. According to Nunn, Johnson told him that the county would not pay the foster care rate, and would instead cover the costs through special education payments offered through AB 490 – a law that provides support for foster youth from the Department of Education’s budget.

Nunn immediately called Kessler and David’s sister Lily C., a first-year law student at UC Berkeley’s Boalt Hall. The same day, he received a call from Deputy County Counsel Lowe, who said that she would look into it.

Later that day, Nunn received a call from Johnson’s district manager, who informed him that they would now cover David for the next five weeks – through high school graduation – and then offer up the AB 490 money.

If Nunn’s story – corroborated by Lily – is accurate, the county would be acting contrary to the stay order Kessler says Judge Hiramoto issued on May 4th. An attorney with close knowledge of the case who asked to speak on condition of anonymity says that “depending on the wording of the order, the county is violating the stay and the next thing someone needs to do is file a contempt motion.”

Lois Rutten, acting director of the Contra Costa County Department of Children and Family Services, says, “as long as the case is on appeal we are paying. I have already authorized the payment.”

Last week, Kessler sent a notice of appeal to the court. The case will then be sent to the First District Court of Appeals in San Francisco. The First District Appellate Project, a non-profit organization that provides appeal attorneys, will then take on the case.

Kessler hopes the attorney who does, files a writ of supersedeas that, if approved at the appellate level, will stay the case until resolution. That could be six-to-eight months from now, plenty of time for David to make the transition to Berkeley.

But what of the 42 other youth in Contra Costa County and the 2,100-plus others scattered throughout the state?

Along with the courts, the other county-level lever to tackle the issues facing David and other youth in his situation is the Board of Supervisors. Before becoming Contra Costa County’s District 4 Supervisor, Karen Mitchoff worked as a fiscal and legislative analyst for the County Employment and Human Services Department, which oversees foster care.

“When I saw this in the paper, I immediately called the staff to see what we are doing about these bubble kids,” Mitchoff says. “If they are living in a foster home nobody is being kicked out. Nobody in our county is going to end up on the streets.”

She argues that the county’s Independent Living Skills Program (ILSP) is working to ensure that all Contra Costa County youth have supports through their transition into adulthood.

But successive waves of budget cuts have made the ILSP program’s already difficult task of coping with the rising tide of youth in need even more difficult, according to Program Coordinator Don Graves.

Graves says that he has only been able to maintain services through aggressive grant writing, solicitations for private donations, and community awareness. “We are always trying to pick up the pieces, so we got good at that.”

Supervisor Mitchoff admits that the ILSP program is overburdened and underfunded like the rest of the foster care system and this ultimately ties the county’s hands as to what services they can provide.

”The bottom line is that we are going to have to deal with this on a case-by-case basis because we don’t have the money,” Mitchoff said.  “It is another example of how the state messed up and we are going to have to pick up the slack, but it is hard when we don’t have any slack to pick up.”

On Friday May 25th the California State Assembly Committee on Appropriations will have a chance to pick up the aforementioned “slack.” The committee will vote on Assembly Bill 1712, which is the second attempt to clean up the inconsistencies found in AB 12.

Under the new legislation, foster care would cover all who were “younger than 19 years of age as of January 1, 2012,” effectively closing the gap that faces foster youth like David C. and allowing them to stay in foster care to age 21.

The California Youth Connection (CYC), a youth-led advocacy organization, will hold a rally and press conference advocating for the passage of AB 1712 on the steps of the Capitol on Thursda,y May 24.  CYC Legislative and Policy Coordinator Chantel Johnson sees this is an opportunity for state legislators to fulfill the promise they made to the counties and the youth they serve when they passed AB 12 back in 2010.  “The youth have lived up to their end up the deal,” Johnson says in reference to the eligibility requirements of AB 12. “But the government hasn’t lived up to theirs.”

Two thousand foster youth, 58 counties and scores of juvenile dependency judges and referees are left waiting to see if the state will fill the gap it created. This Friday, they will find out.

FMC intern and Harvard Law student Jamie Kapalko contributed to this story.

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Daniel Heimpel, Publisher, The Chronicle of Social Change
About Daniel Heimpel, Publisher, The Chronicle of Social Change 182 Articles
Daniel is the founder of Fostering Media Connections and the publisher of The Chronicle of Social Change. Reach him at dheimpel@fosteringmediaconnections.org.