Sending children to live out-of-state — a decision for DCF, not courts

State lawmakers have stripped state judges of the authority to send children who break the law to out-of-state facilities for treatment.

Instead, the decision will be left to the Department of Children and Families, a state agency that has been monitored by the federal courts for decades for failing too many children in its care.

As part of its effort to reform the troubled agency — and with the approval of many child advocates — agency officials have made it a priority to avoid sending children to live out of state. But that initiative — which has resulted in almost 300 fewer abused, neglected or delinquent children living out-of-state today — at times has come into direct conflict with a judge’s order.

Last week, legislators and Gov. Dannel P. Malloy changed the law to ensure this rift wouldn’t routinely happen. The new law puts the lawmakers’ trust in agency officials to make these decisions.

“At the end of the day, the court cannot order me to send someone out of state,” said Joette Katz, who has been the commissioner of DCF for two years and is a former judge herself.

This change comes as justices on the Connecticut Supreme Court are in the process of deciding whether the courts or executive agency should get to make these placement decisions.

Argued before the high court in October, the case in question involves a 15-year old boy from Hartford who pleaded guilty to robbery to avoid his case being transferred to adult court, where punishments are typically much harsher. The decision was made in court that Jeffrey M. — a first-time offender — be sent to live in a treatment facility in Pennsylvania.

“I felt strongly that was a mistake,” Katz said this week, who has been so unhappy with that facility she stopped sending children there.

But Jeffrey M.’s court-appointed lawyers say giving so much authority to an executive agency is a huge mistake since the court system is most familiar with these offenders.

“It just doesn’t make sense,” said Aaron J. Romano. “This legislation has tied the court’s hands.”

What’s the alternative? Jail?

JC — a teenage boy from New Britain — knows firsthand the impact of this initiative to keep children in state.

Unhappy with JC’s placement at the state’s juvenile detention facility in Middletown for a breach of peace offense, his family hired a lawyer with the hope she could get him transferred somewhere to get him the treatment he also needs for problem sexual behaviors.

“DCF refused to pay for those placements for treatment,” his lawyer, Naomi Fetterman, said. She was requesting he be sent to a facility out of state.

After nine months of living in juvenile detention — and minutes before a judge would hear the case on whether JC’s placement was appropriate — DCF offered his lawyers the opportunity to release him and end his involvement with the agency.

“What do you do when an offer like that is made for your client? … He was kicked out. No services. No treatment. Nothing. What do you think is going to happen when he is back in his home?” Romano asked.

It’s not that Romano and Fetterman disagree with the initiative to keep children as close to home as possible. The problem, they say, is that the programs aren’t yet in place in the state to support such an initiative for certain types of children.

Child advocates have for a long time complained that there are too little or no treatment at all for children with problem sexual and fire-setting behaviors, and girls with discipline issues

This shortage resulted in 364 children living in out-of-state facilities in January 2011. Today, that number is down to 79 children.

Katz has acknowledged this void, and is in the process of opening or converting existing facilities to address these needs closer to home, where relationships are easier to maintain and the transition back into the community is swifter. She points out that when she came into office she found many foster and delinquent children had been living in out-of-state facilities for several years.

“We are not supposed to be warehousing children. Children shouldn’t be raised in institutions and so we are building capacity here,” she said. “We need to be doing a much better job.”

But for Jeffrey M. — the case pending before the Supreme Court — those appropriate options weren’t available in state, his lawyers said.

And now that the commissioner has the final say where children who break the law are placed, they hope appeals to those placements are handled more quickly.

“The delays now go on for months,” she said.

The Judicial Branch reports that the average amount of time a child spends in a pretrial detention facility awaiting placement after having been convicted or pleading guilty is 33 days. Because of privacy issues, the department was unable to provide details as to how many childdren remain incarcerated because there is no suitable placement for them.

Nothing is permanent

Gov. Dannel P. Malloy said he signed into law this change so the commissioner has the appropriate authority to turn around a troubled agency.

Calling her initiative to bring children home from out of state a “highlight” of her tenure, he said “We thought this was an appropriate step to take.”

Sen. Terrry Gerratana, the co-chair of the legislature’s Select Committee on Children, agreed.

Katz’s “track record shows why this was necessary. There was no doubt in my mind that she will continue putting the best interest of children first,” the Democrat from New Britain said.

But nothing is permanent, she noted, if this unilateral authority does not work out.

“Things can change in the future and the legislative branch can respond accordingly,” she said.

If history is any indication, however, Mickey Kramer with the state’s Office of the Child’s Advocate, said DCF has a weak record.

“When DCF makes a decision on placement it is their responsibility to inspect and determine how effective it is. They don’t always do that very well,” she said. “It’s not so much as to who has that authority. It’s how they are using it.”

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