IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
FOR SNOHOMISH COUNTY
In re the Dependency of:
The State of Washington,
BRIEF AMICUS CURIAE THE FOSTER CARE JUSTICE ALLIANCE IN SUPPORT OF THE CHILD
I. IDENTITY AND INTEREST OF THE AMICUS CURIAE
The Foster Care Justice Alliance is a charitable, non-profit, volunteer organization, as defined by the Code of the Internal Revenue Service, 26 U.S.C. § 501(c)(3), dedicated to defend the rights of children in out-of-home care. We are an alliance of foster parents, relative caregivers, guardians ad litem, foster care alumni, and other interested persons who have been touched by foster care.
The statutes RCW 13.34.400, 13.34.136(3), and 13.34.145 (3)(b)(vi), cited herein, were ones that I helped draft, through my involvement in the Joint Legislative “Sirita” Task Force on Child Safety, and advocated through my website, www.SiritaLaw.com. This was prior to the incorporation of the Foster Care Justice Alliance, but many of our members were involved in the advocacy that led to final passage of these and other foster care reform bills. The consensus of the task force, which included representation from the social services, judiciary, law enforcement, birth parents, foster parents, public defenders, OFCO, AG, DSHS, and the legislature, was that better decisions are made by the court when the court has unfiltered access to relevant reports and all voices are heard. We examined the fatality reports from many cases, including Zy'Nyia Nobles, Rafael Gomez, and my own foster daughter, Sirita Sotelo. The common thread in all these cases was a lone voice warning against the ultimately fatal course recommended by the department. Poignantly, the judge involved in the Rafael Gomez case said that if he had seen the original medical reports, he never would have returned the child home.
Our interest in this case is to protect the rights of the dependent children, which we believe have been violated. The children have a fundamental right to be protected by the state from physical and emotional harm, and a right to due process.
I, Gary S. Malkasian, certify or declare under penalty of perjury under the laws of the state of Washington, that I am over the age of 18, am competent to testify, and that the foregoing facts are true and correct to the best of my knowledge.
Signed this 9th day of January, 2009, at Woodinville, Washington.
GARY S. MALKASIAN
FOSTER CARE JUSTICE ALLIANCE
The birth parents of siblings S.C.P. and D.P. have filed a motion to remove them from the homes of their foster parents. The Department of Health and Social Services has tacitly supported this motion by allegedly providing unredacted information on the foster parents including full names, addresses, birth dates, the names of their parents and other sensitive information. Considering the nature of the allegations against the birth parents, including gang involvement, this is either gross negligence or a deliberate, malicious attempt to silence the foster parents by intimidation. It is a violation of court order in either case, and calls again into question the dedication of the department to the children they are sworn to protect.
The Department of Health and Social Services has attempted in the dependency of siblings S.C.P. and D.P., at various times, to change the permanency plan without judicial review by the use of non-contested reviews, intimidation, and, in our opinion, spurious allegations against the foster parents. We welcome the court’s recent decision that there shall be no further non-contested reviews in this case, and further assert that when there is serious contention on the part of the caretakers and medical providers with the department’s case plan, that only full review hearings are appropriate.
RCW 13.34.400, enacted as the Rafael Gomez Act, requires that the court be given the original medical, visitation, mental health and drug reports. We understand that multiple medical and mental health providers have commented on this case. In two recent incidents, the reports of emergency room physicians suspected physical abuse. Three psychological assessments of the mother concluded that she had borderline personality disorder and was “off the charts” in anti-social behavior. If the department has not been forthcoming with these reports, it is disconcerting. Mental health conditions of this nature do not simply disappear with years of therapy.
The department does not seem to consider relevant the medical fragility of the children or their bonding to their primary caregivers. Judge Kurtz, at an emergency hearing August 28, 2008, chastised the department for removing the child from the Langley home, and said that the neurologist's recommendation that the child remain with the Langley’s carried “great weight”. We suggest that a bonding assessment by an attachment specialist selected by the court would be informative.
The children have been in out of home care far in excess of 15 months. RCW 13.34.136 (3) and RCW 13.34.145 (3)(b)(vi) require the court to order the DSHS to file the termination of parental rights petition, or issue a written good cause exception explaining why it is not in the child's best interest to do so. After 3 years in out of home care, this is a gross violation of the children’s right to due process.
In fact, the court has already made such an order, and the department is not in compliance. The department's assertion that a termination of parental rights petition had been filed was false. We suggest the court make such an order again.
The department's handling of this case has been appalling. The department has suppressed vital information from the court, made false statements, and is not in compliance with court orders. If the department cannot be more forthcoming we remind the court that it is within your purview to hold the Assistant Attorney General Shara Delorme and the case supervisor Alisha D. Jackman personally in contempt of court, as well as the Department of Health and Social Services. We suggest that if the petition to terminate parental rights is not filed within 30 days, in accordance with RCW 13.34.136 (3) and RCW 13.34.145 (3)(b)(vi), that this court fine both the case supervisor and the Assistant Attorney General personally for each day until the filing is made. Similar measures have been used in other jurisdictions and proved to be motivating.
Respectfully submitted this 9th day of January, 2009.
GARY S. MALKASIAN
FOSTER CARE JUSTICE ALLIANCE