Finally, a Judge Who Owns the Decision to Remove Kids

New Orleans Judge Ernestine Gray. Photo: National Coalition for Child Protection Reform

Last week, the Washington Post profiled the remarkable work of Judge Ernestine Gray to essentially eliminate New Orleans’ foster care system. Between 2011 and 2017, the number of kids in foster care in New Orleans fell by 89 percent. Of the kids who did enter foster care, seven in 10 left it within a month.

She’s achieved these results without any evidence that she’s putting more children at risk. In fact, the article notes the city’s rate of children being revictimized is lower than the statewide average.

The article suggests that Judge Gray achieved these outcomes by simply applying the law and forcing child welfare agencies to meet their legal burden, not being swayed by general concerns about a family. It reads:

“If protective services can’t make an ironclad case as to why children should be removed, Gray returns them to their families — even if DCFS investigators have described the setting as an ‘unhealthy environment.’”

The most striking aspect of the “reforms” instituted by Judge Gray is that she didn’t reform anything. She simply applied the law. Just like all judges are required to do.

But the article missed a key storyline, which has implications for courts across the country. And one that strikes at the heart of what it means to be a leader – the importance of owning the most important decisions your institution makes. Would Ford introduce a new car without its CEO signing off? Would a college basketball coach allow her assistants to let a player onto the team without her knowledge?  Would the head of a major company lay off thousands of workers without endorsing the decision?

No – because good leaders own their company’s decisions.

In child welfare, there is no decision as important – or life altering – as the one to separate children from their parents. Yet, in courts across the country, judicial practice shows dissonance between our values and actions.

Judges speak of the devastating impact of removing children. At conferences, experts tell them about the overwhelming research that supports those views. Children share stories about the permanent damage that family separation created in their lives. This “consensus” suggests that our system will invest the time and resources to ensure that only those children who must enter foster care do so. No decision is more important.

But visiting courthouses across the United States (except maybe the one in New Orleans) leaves you with a very different impression – that the removal decision is one we don’t really value. Courts often entrust the decision to allow emergency removals by child welfare agencies to probation officers, magistrates or referees – who may or may not be trained in child welfare law. In fact, some courts have even created pre-signed court orders, which they then permit agencies to fill in the blanks.

Then, they permit this same array of actors to preside over the first full removal hearing in court. As a result, those with the least amount of discretion, political power and training are tasked to make the most important decision in a family’s life. So unsurprisingly, they often take the path of least political resistance – to place kids in foster care. Journalists rarely report on the kid who shouldn’t have been yanked from his family. It’s the “safe” choice.

Sure, this system is convenient for the bureaucracy – the more court staff that can hear removal cases, the less work it is for actual judges. But if you were entering an emergency room, would you want to be treated with someone not trained to handle your condition? Or would you want them to get the expert who can carefully diagnose and treat you?

So, here’s what I think is the most radical part of Judge Gray’s transformation of the New Orleans Juvenile Court. She actually presided over the removal process. She considered the requests for removal. She heard evidence. She applied the law. She owned the most important decision in her courthouse. She led by example.

To all those juvenile court judges out there, follow her example. Don’t entrust others in your courthouse to render the most important decision in a family’s life. Make sure that you – and no one else – closely examines whether an ex parte removal is warranted, whatever time the request comes in. Is there such an emergency that immediate action is needed without a hearing?

Guarantee families that you will sit on the bench at that first removal hearing, even if your busy docket makes it inconvenient.

Own the decision. Because that’s what leaders do.

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