Per capita, West Virginia removed more children from their parents’ homes than any state in the nation in 2010 and took children at a rate more than double the national average, according to data compiled by the National Coalition for Child Protection Reform based on U.S. Department of Health and Human Services.
When comparing the total number of children taken into custody with the total number of children living in poverty – the best predictor of removal – West Virginia ranks ninth, but still removed children at a rate almost double the national average.
In 2010, West Virginia had the third highest number of children per capita placed in foster care, according to the same report.
Richard Wexler, executive director of the NCCPR, argues that the structure of federal grants for state child protection agencies can create an incentive for agencies to lean toward child removal rather than providing in-home services to families.
“Safe, proven alternatives to foster care typically cost less in total dollars. But there can be times where it might cost the state less to use foster care because of the way federal aid is structured,” Wexler said.
This, he explained, can create a financial incentive to remove children from low-income households rather than providing in-home services and leaving the children in place.
“The federal government will reimburse (the state for foster care services) for any case where the family is poor enough,” Wexler said, noting that funding is only available for children from low-income families. “That reimbursement is for foster care and only foster care. That money cannot be used for anything else, and it is an open-ended entitlement. For every child you take away, the federal government will pick up a part of the tab.”
“If you try to avoid foster care, there is no open-ended entitlement from the federal government.”
Such financial incentives are not limited to the DHHR. A recent state Supreme Court case revealed a practice in West Virginia’s family courts whereby guardians ad litem – attorneys appointed by the court to represent a child’s best interests, often in abuse and neglect or divorce proceedings – can stand to gain financially if the children they represent are adopted.
In 2010, the court reviewed a case called “In Re Lawrence A.” involving a Jefferson County woman whose parental rights Judge John Yoder had declined to terminate. The DHHR and Tracy Weese – who was the guardian ad litem in both the Lawrence A. case and Underwood’s case – sought a writ of prohibition to force Yoder to terminate the woman’s rights, which the high court granted.
In her brief to the Supreme Court, Weese admitted participation in what she called “a long standing practice in the Twenty-third Judicial Circuit wherein guardians ad litem occasionally participated in adoption proceedings for their ward(s).”
She further states that she “did discover that this is a practice that was not exclusive to the Twenty-third Judicial Circuit.”
David Barnette, a Charleston attorney and member of the American Academy of Adoption Attorneys, calls acting as a guardian ad litem and an adoption attorney for the same child a “clear conflict of interest.”
Barnette explained that a guardian ad litem’s responsibility is to advise the court on a child’s best interests. If a guardian ad litem also has a “pecuniary interest” in the eventual adoption of a child – in the form of legal fees for representing the adoptive parents – there would be a clear conflict with this core responsibility. He added that there would be no party capable of waiving the conflict of interest because the interested party is a child.
Rebutting what she called a “critique” leveled against her by Yoder, Weese pointed out that he “did not … remove (her) from serving in this or any other case based upon the ‘appearance of impropriety’ or an alleged motivation for pecuniary gain.”
In 2010, the West Virginia State Bar issued an advisory ethics opinion finding that this practice created a conflict of interest. Weese describes its conclusions in her brief.
“Essentially the Bar stated it was a conflict to file adoption petitions for pre-adoptive parents when you served as the minor’s guardian ad litem.”
After receiving the Bar’s ruling, Weese wrote that she “immediately stopped participating in adoptions under those circumstances.”
Weese also served as the guardian ad litem for Underwood’s children, though no determination could be made about whether she participated in adoption proceedings for them. Adoption records are generally sealed, making it impossible to examine the extent to which guardians ad litem in West Virginia continue to participate in adoption proceedings.
Wexler said he was shocked to hear of such a practice.
“Whoa. That’s a new one for me,” Wexler said. “Let me get this straight. The guardian ad litem – who, of course, recommends to the judge to terminate parental rights – is also the lawyer for the adopted parents?”
“I would argue that somebody whose job is to be a law guardian shouldn’t be an adoption (attorney). Those two jobs should be mutually exclusive. Period. Any involvement in pushing or promoting one form of permanence or another is in conflict with the job of a law guardian, which is to look out for what is in the best interests of that particular child. Of course, it is infinitely worse if this law guardian was involved in getting these particular children adopted,” Wexler said.