Studies in Law, Politics, and Society

Austin Sarat

• Publisher: Emerald Publishing Limited
• Year: 2017
• Print ISBN: 9781787143449
• eBook ISBN: 9781787149199
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Studies in Law, Politics, and Society provides a vehicle for the publication of scholarly articles within the broad parameters of interdisciplinary legal scholarship. In this latest edition of this highly successful research series, articles examine a diverse range of legal issues and their impact on and intersections with society. Topics covered include: an analysis of Charles Reznikoff's autobiography and its implications for residential lease law; a classification of condominium crime; an historical and developmental account of judicial activism; a reconceptualization of the legal approach to the reproductive rights of adolescents; an examination of the stories told by foster care youth to legislatures, courts and policymakers; an account of the role of maturity, policy, and parental authority in legal standards for minor's rights; and the debate surrounding transgender children and teaching gender identity in schools. This volume brings together leading scholars and will be vital reading for all those researching in this subject area.

“LETTING KIDS BE KIDS”: YOUTH VOICE AND ACTIVISM TO REFORM FOSTER CARE AND PROMOTE “NORMALCY”*

Bernard P. Perlmutter

ABSTRACT

In this chapter, I examine stories that foster care youth tell to legislatures, courts, policymakers, and the public to influence policy decisions. The stories told by these children are analogized to victim truth testimony, analyzed as a therapeutic, procedural, and developmental process, and examined as a catalyst for systemic accountability and change. Youth stories take different forms and appear in different media: testimony in legislatures, courts, research surveys or studies; opinion editorials and interviews in newspapers or blog posts; digital stories on YouTube; and artistic expression. Lawyers often serve as conduits for youth storytelling, translating their clients’ stories to the public. Organized advocacy by youth also informs and animates policy development. One recent example fosters youth organizing to promote “normalcy” in child welfare practices in Florida, and in related federal legislation.

Keywords: Foster care; youth voice; storytelling; normalcy; child welfare

The remarks and suggestions made by foster care graduates contained a recurrent theme – the importance of consultation with the young people themselves. They felt like pawns – subject to the many powers of others. They felt disregarded, that it did not matter what they wanted or had to say, because too often they were never asked. Whether it was a decision about a foster home, about changes in placement, about visiting arrangements with kin, or about their goals in life, they felt they should have been heard.

– Festinger (1983, p. 296)

*Earlier versions of this chapter were presented at the International Academy of Law and Mental Health XXXIV International Congress on Law and Mental Health (Vienna, 2015), and the Temple Law Review/Juvenile Justice Center Symposium on Law and Adolescence, at Temple Law School (2006).

“I DON’T HAVE NOBODY RIGHT NOW”

(Testimony of former Florida foster child Natasha Minzie)

In February 2005, before the start of the Florida legislative session, the State Senate’s Children and Families Committee convened a hearing to evaluate how the Florida Department of Children and Family’s independent living program was working to assist teens leaving foster care. The Committee learned that the program was over budget, riddled with problems, and failing to prepare many foster children to live on their own.

A representative from the State’s Auditor General’s Office reported on a comprehensive study of all current and former foster youth ages 13–23 (Auditor General Report, 2005). The Auditor General found that only one in five pursued education or vocational training after high school (Auditor General Report, 2005, p. 4). Nearly half had been suspended or expelled from school in the past year (Auditor General Report, 2005, pp. 4, 6). There were dramatically higher rates of homelessness, arrests, and reliance on welfare than among their non-foster care peers (Chapman, 2005). The teens had attended life skills training in less than a quarter of randomly audited cases (Auditor General Report, 2005, p. 6). Despite the Florida law mandate that caseworkers meet with foster children ages 13–17 to make sure they are prepared for life on their own, half of the audited cases lacked evidence that a caseworker had developed a transitional plan for the teens (Auditor General Report, 2005, p. 6; Chapman, 2005). The Chair of the Committee called these failures “tragic” (Chapman, 2005).

Of the five individuals who testified before the Committee that day, only one was a former foster care client. Natasha Minzie, a 20-year-old graduate of the foster care system, and a client of mine at the Children & Youth Law Clinic, shared her story with the members of the Senate Children and Families Committee. Natasha recounted her experiences during and after foster care and her recommendations for fixing the system that had tragically failed her and her peers.

In her written comments, Natasha prepared to talk about her experiences after leaving state care, some of which had previously been reported in the media (O’Matz, 2004, p. 1B). She also planned to advocate for several specific measures to reform the independent living program for former foster youth. These included reinstatement of extended foster care as an option for former foster youth enrolled in school ages 18–23, continuation of juvenile court jurisdiction past age 18, expanded Medicaid coverage for all former foster youth through age 21, enhanced job, school, housing, and independent living training to better prepare all youth aging out of foster care for independence. Her testimony was covered by several news media outlets, and it was broadcast live on the state legislature’s web stream (Chapman, 2005, p. 13A; Levick & Pokempner, 2005, p. 13A). It was intended to convey to the legislature and public the experiences of one client of the system and to serve as a catalyst for some of the reforms under consideration in the 2005 session.

But what most moved the legislators that day was Natasha’s personal story, which she told with great power and emotion. She told the senators that by the time she was a little girl, she had lost nearly all of her relatives. Her sister died when Natasha was nine. Her brother drowned in a pool at a foster home when he was two. Her mother was dead. Her father was gone. Caseworkers had never paid Natasha much attention or taught her how to live on her own. She was 20 years old, living in an apartment rented to her by a church and struggling to get through cosmetology school without any support from her family or the state. Then she stopped speaking, went off script, and quietly said, “I don’t have nobody right now,” breaking into tears at the microphone. “I am basically by myself” (Chapman, 2005, p. 13A).

Natasha’s testimony riveted the audience and brought several senators to tears. As I watched, what struck me was that the value of her appearance that morning had less to do with her specific recommendations than with the act of giving testimony. In fact, Natasha had departed from the prepared remarks that she, a law student, and I had collaborated on before she traveled to Tallahassee. Her brief silence and the ensuing extemporized narrative were more about her personal pain and loss than about the specific policy recommendations that she had planned to articulate that day to the Children and Families Committee.

TRUTH AND RECONCILIATION

Yet, women’s “silence” can be recognized as meaningful. To do so requires carefully probing the cadences of silences, the gaps between fragile words, in order to hear what it is that women say … the specific aim of the Commission, assumes, perhaps patronizingly, that the world is knowable only through words and that to have no voice is to be without language, unable to communicate. The testimonies reported here suggest otherwise. (Ross, 2003, p. 50)

Nathasha’s unplanned departure from her script illustrates one way in which survivors of the foster care system make their mark on policy development. Giving youth like Natasha the opportunity to tell their stories through both speech and silence bears a striking similarity to the Truth and Reconciliation Commission testimonies of women who have survived systemic abuse in societies transitioning out of armed conflict or political and social repression.

Elaine Scarry has written about the experience of victims of war and torture when testifying about the inexpressible and unspeakable character of the pain they endured. She investigates a corpus of survivor testimony about physical pain and finds it originating in “pre-linguistic states of crying, whimpering and inarticulate screeching, which all form part of the bodily expressions that are framed outside language” (Scarry, 1985). These expressions arise in a state “anterior to language, to the sounds and cries before language is learned” (Scarry, 1985, p. 5). Seen within this heuristic framework, when one moves out of “pre-language” and “projects the facts of sentience into speech” this projection makes the “fact of the person’s suffering … knowable to a second person” (Scarry, 1985, p. 7). Examining the testimonial expression of women victims in transitional societies, Fionnuala Ní Aoláin and Catherine Turner observe that

The most powerful images of transitional justice have often come from the truth telling processes that have sought to capture and tell the story of a society’s previous experiences through words that up until then were unspeakable or unacknowledged. (Ní Aoláin & Turner, 2007, p. 274)

They see women’s acts of delivering their testimony as “hav[ing] strong cathartic resonance as well as serving the need for some kind of legal accountability” (Ní Aoláin & Turner, 2007, p. 274).

A common feature of women’s truth testimony “is a persistent inability to articulate – a ‘block’ on the expressive or verbal word” (Ní Aoláin & Turner, 2007, p. 276). Just as meaningful as the words spoken by truth witnesses are the “public … silences [that] are a persistent feature of women’s testimonial presentations in truth telling contexts.” The authors urge us to

clearly understand that those silences should not be read as non-statements about the experiences of women. The problem is one of how we mark the significance of communication (in law as well as in narrative forms) and what weight those listening give to both the verbal expression and silence. (Ní Aoláin & Turner, 2007, p. 276)

For many youth, particularly (but not only) young women who have suffered violence and trauma in foster care, an analogous tension between expression and silence is present when they testify about their experiences of systemic neglect and abuse, in courtrooms or before legislative bodies or in other public tribunals.¹ When children are called upon to testify, they reach deep inside a childhood of dark and unpleasant secret memories and give expression to them. Giving youth opportunities to describe the traumas they have endured at the hands of those assigned to protect them, and giving them a chance to pause between the words that speak to the public ensures an authentic youth voice. “The words of those most knowledgeable about the failures of the policies and practices we have created and most eloquent about the costs of leaving those failures unaddressed – the youth themselves” constitute testimonial truths of the policy failures (Liebmann & Maddox, 2010, p. 255).

The testimonial silences of foster youth echo the information blackouts surrounding them. A study by the Pew Commission on Children in Foster Care found that many children in care expressed “bewilderment … at being removed from their families and sent to live elsewhere with no explanation – or at least, none they could understand” (Voices from the Inside, 2004, p. 9). In their testimony to the Pew Commission, “they sounded a common, painful theme: their voices were lost in a system that does not always speak or listen enough to those it most affects” (Voices from the Inside, 2004, p. 9). Children are participants in cases but are often told nothing about why they were taken from their homes, what is happening in the present, and where they’re going to live the next day. It is as though they inhabit the lacunae of a vast bureaucratic apparatus of the state that houses and shelters them rather than providing them homes with families who give them meaning, value, and place. As one child told her Pew Commission interlocutors:

I would feel like I was just being passed around and not really knowing what was going on. No one explained anything to me. I didn’t even know what rights I had … if I had any. No one told me what the meaning of foster care was. No one told me why I had been taken away from my mom. I knew there were bad things going on. But no one really explained it to me. (Voices from the Inside, 2004, p. 9)

In addition to the information blackout by case managers speaking or listening to them as fully vested participants and rights holders in their cases, the youth found the language, rules, timetables, jargon, and acronyms of foster care impenetrable and incomprehensible, furthering their exclusion from the process. Children’s participation, like truth and reconciliation testimony, is thus marked by both verbal staging in a public setting and by public silence in the policy discussion.

Giving voice to their brutal experiences in this crucial life and legal transition process – of leaving foster care and entering adulthood – resembles transitional justice testimony in which victims at the point of societal change tell their stories to hold their abusers accountable. But as much as these personal expressions of pain and loss bring them catharsis and healing, foster children often lack capacity and language to voice a reform agenda or to articulate concrete remedies for harms suffered in an abusive system:

In foster care, teens learn that the way to obtain more attention is to demonstrate being more victimized, traumatized, or potentially self-destructive than the other teens in care. Children who have spent years in the system are terribly good at relating the horror of the situations that they have lived through, yet they have had no experience articulating the skills, strengths, or value they can bring to an employer, college, family, or friendship. (Krebs & Pitcoff, 2004, p. 359)²

Tali Gal identifies several ways to bring the child victim inclusively into decision-making processes (Gal, 2011). Examining psychosocial literature, the needs of victimized children, and international due process standards, she develops eight “heuristics” to encourage greater victim participation:

• First, she urges decision-makers to treat child holistically, instead of treating isolated problems.
• Second, she says to tailor ...

Table of contents

• Cover
• Title Page
• Commercial Leases and Family Realities in Charles Reznikoff’s Family Chronicle
• Condo Crimes and Legal Prospects for Confronting the Unusual Suspects
• The Nursery Years of ‘Judicial Activism’: From a Historian’s Shorthand to Media Catchphrase 1947–1962
• Teenage Pregnancy, Parenting, and Abortion: Legal Limits on Adolescents’ Reproductive Rights☆
• “Letting Kids Be Kids”: Youth Voice and Activism to Reform Foster Care and Promote “Normalcy”☆
• Teen Health Care Decisions: How Maturity and Social Policy Affect Four Hard Cases
• Transgender Children, Teaching Early Acceptance, and the Heckler’s Veto