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June 14-20, 2006

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Where are the kids?

Photograph by Felipe Buitrago
Have You Seen Me?: Donna McLean (center) hasn't, but she says she did see documents from the Department of Family and Children's Services saying the county agency had inflated her child count. She has filed a $400 million lawsuit.

Where Are the Kids?

According to a $400 million lawsuit, some didn't exist—even though the county was getting money for them

By Vrinda Normand

ON A Saturday morning in January of 2001, Donna McLean's two sons were quietly playing with Lego toys in the living room of their Campbell home. McLean was watching political coverage on TV, awaiting President George W. Bush's first inaugural address.

Less than 24 hours earlier, McLean had walked out of a Santa Clara County courtroom with full custody of Anthony and Mark, then 6 and 8 years old. She was relieved as she sat on the couch that morning, believing her two-year legal battle was over.

It wasn't. Santa Clara County social workers, escorted by a Campbell police officer, showed up at her door under the guise of a brief post-trial checkup. Instead they removed Anthony and Mark from the house as the boys cried and clung to furniture. In shock, McLean cried out, "Why?"

She didn't get an answer. The agents left without telling her why they were taking her children.

She didn't sleep for five days while her boys were gone.

"I was a basket case," McLean says, "but I decided if I don't keep my wits about me, I'm no good to my kids."

So she pulled herself together, hired a lawyer and sued the county for violating her civil rights and wrongfully taking her children.

Three years later, the case was settled out of federal court in McLean's favor. The county agreed to pay her $500,000 and put on record that the removal of Mark and Anthony was "unfounded."

But she still had no clues as to why the social workers apparently overstepped their bounds. Despite the security that could come with remaining silent after her financial settlement, the 40-year-old McLean has decided not to walk away with so many questions unanswered.

Missing Children

In the process of discovering documents for her civil rights case, McLean says she came across highly confidential social workers' notes about her children's seizure. According to the lawsuit, those notes stated that "case count will be for 5 children even though there are only 2 children as per Ken due to the complexity of the case." Ken Borelli is assistant director of the Department of Family and Children's Services (DFCS).

Another set of notes from a social worker's case conference, according to the suit, mentions the same instruction "per Ken B."

McLean became even more suspicious when she learned of a similar puzzle at San Jose State University. The DFCS contracted with the university's school of social work in 2000 to study the overrepresentation of Latino and African American kids in the child welfare system.

Researchers were given access to confidential case files, but ran into an unexpected obstacle in obtaining the sample for their study. Forty percent of 1,298 files they requested for analysis were missing or unavailable.

County spokeswoman Greta Helm says there's a simple explanation: 529 of the requested cases were open and in the offices of the social workers. "They weren't missing in that sense," she adds, just unavailable.

But that explanation doesn't jibe with the study itself, which was completed in 2003 and is available to the public online. In several areas of the report, researchers say they only requested closed cases.

Former DFCS social worker Noemi Baiza says she became perplexed in 2001 when she served on the advisory committee for the SJSU study.

"How can that be?" she asked about the missing files. "You don't lose 500 cases. The only logical explanation is that they never existed."

That's also what McLean suspected when she brought her concerns to a Southern California attorney named Doug Linde. Together they connected the dots between the high percentage of missing files and what they believed were blatant instructions to inflate the number of McLean's children.

Linde and McLean have since filed a $400 million lawsuit against Santa Clara County, which alleges that the DFCS is fraudulently overbilling the state and federal governments for hundreds of children in its care.

"The [DFCS] ... engage in a pattern and practice of increasing its funding from the State of California and United States of America," the lawsuit asserts, "by simply making up children."

On behalf of the DFCS, Helm says the allegations are false, and the case "has no merit" because neither the California attorney general nor the U.S. Department of Justice intervened after reviewing the complaint. The false claims lawsuit, filed on behalf of California and the United States, seeks to restore funds to the state and federal governments.

But a letter from the DOJ, addressed to Linde and Santa Clara County Counsel, states that their decision to decline intervention "should not be construed as a statement about the merits of the case. Indeed, the United States retains the right to intervene at a later date upon a showing of good cause."

Linde says the lawsuit, still in its early stages, will give him a chance to build a bigger case, as he is able to request documents that would otherwise be confidential.

"The whole system is built under a shroud of confidentiality," he explains. "Under the current climate, the only way to get any answers is to file a lawsuit."

Image Problems

At the heart of this matter lies a widespread mistrust of the DFCS, an agency that last year raked in $175 million from the state and federal governments, in addition to $31 million from the county.

Most of this money flows in for "back-end services" provided only after the agency removes a child from the home, instead of "front-end services" aimed at keeping families together in the first place. A 1992 grand jury investigation on the DFCS said it was problematic that the agency benefits financially from routing kids into the system.

What's more, the federal government sponsors an adoption incentive program to encourage more permanent placements for foster children. The state receives a $4,000-6,000 bonus for every child adopted out of foster care.

The 1992 grand jury investigation expressed concerns about an issue that local critics have bemoaned for years: The DFCS says its mission is to protect children from abuse and neglect, but are its intentions always so pure?

The Grand Jury reviewed a case in which DFCS managers wanted to place a child for adoption even though the child's parent had successfully completed her reunification program. The social worker handling the case resisted pressure from her superiors and was able to prevent the hasty adoption. "This was only one of several instances," the grand jury remarked, "in which the integrity of the department and adherence to its mission appear to be questionable."

Helm defends the DFCS. "Our motivation is very much to strengthen families," she counters. "We do everything we can to not bring kids into the system."

She points to a steady decline in the number of kids taken from their homes in the past five years, down from 1,032 in 2001 to 826 in 2005. The number of caseloads also dropped in the same period from 2,564 to 2,026. The department currently employs 315 social workers—a number that has decreased by 10 percent in the past four years, Helm says, because of budget cuts.

Ironically, a look at county budget records reveals that the decrease in services has not resulted in a decrease of funds. Money from the state and federal governments swelled 72 percent between 2000 and 2005—jumping from $102 million to $175 million.

Accounting for all this cash is where critics say the DFCS falls short. A 2006 audit by the U.S Inspector General revealed that from 1999 to 2003 the department wrongfully billed for reimbursement $572,000 that did not qualify for federal funds. The audit also found $6.7 million in questionable claims related to the operation of a computerized case management system. Those costs are still under investigation.

In its report, the IG said the DFCS made improper claims for federal money because it "did not have adequate internal controls."

When Metro brought this audit to Helm's attention, she said she had never seen it before, and told us the finance director was unavailable for comment.

'They Had a Dollar Sign on His Head'

The stuffy boardroom at the Santa Clara Valley Water District in San Jose is packed with over 80 people on a hot Saturday afternoon. But the men and women sitting in hard folding chairs aren't here to talk about water management; they're here to talk about their kids.

The local chapter of the Citizens Commission on Human Rights, founded by the Church of Scientology, organized this hearing to give parents a chance to air their grievances about the DFCS.

A woman named Monique approaches the panel of advocates and attorneys with a baby on her hip. She tosses her long hair to one shoulder and delves into the story about how she lost her son to DFCS. The boy got third degree burns from a household accident that happened when Monique's husband was watching the children. She says she jumped through hoops like parenting classes and psychiatric evaluations to no avail.

"They had a dollar sign on his head," she says, her voice cracking. Members of the audience murmur in agreement. "I pray that you guys can get together and stop them."

Robert Powell, one of the family law attorneys who sat on the commission panel, believes the root of the problem is money and that "financial incentives lead to perversion." This "perversion," he says, is created by DFCS management.

"The system is terrible," says San Jose-based attorney Jim Bratton. "We've got to be able to come up with some way to help people keep their kids."

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