Monday, March 16, 2009

Marcus Fiesel died in the custody of a two-parent home

There was a time when conservatives would denounce unelected, activist bureaucrats who made substantive law that should instead be made by the elected legislature. I guess that only applies when the policy at question is not one that gives heterosexual, married couples preference in adopting children in foster care.

Matt Hurley at Weapons of Mass Discussion (an ironically named blog that has rare, if any, discussion at all) sees no problem with the new policy. Matt betrays his supposed conservative philosophy in doing so.

First, a clarification. Mike Fox, who has virtually no training or experience in matters of child custody. He has, to my knowledge, no background in social work. After the tragic death of Marcus Fiesel, Fox resigned as Butler County Commissioner to be appointed the new Director of the Butler County Children Services agency. The agency is responsible for largely enforcing state law regarding the treatment and assistance for abused, neglected or dependent children. The jurisdiction and responsibilities of agencies such as Butler County Children Services is spelled out in state statutes. On top of policy set by the popularly elected state legislature, the local policies of the agency are also set by the elected county commissioners or by a board appointed by elected officials (county commissioners and juvenile court judges).

With no public notice, Mike Fox, upon learning that his agency had approved an adoption of a child to his same-sex foster parents, decided to change the agency's policies to create a preference of heterosexual married couples over single-parent and same-sex couples. The county commissioners were, apparently, never told or consented to the creation of such a policy. As far as anyone knows, Butler County is the only county in Ohio where such a policy exists. Fox's policies make the county ripe for equal protection and due process lawsuits.

Mike Fox is an unelected bureaucrat who defends this policy by claiming its backed up by various studies and objective data. However, Mike Fox has never revealed what studies and data he's referring to, nor did he ever soliticit or permit anyone in the public to offer review of these studies or present contrary evidence.

If Ohio wants children services to prefer placing abandoned, neglected, or abused children with heterosexual, married couples, then that should be the verdict of the elected General Assembly. It has not done so, and it's unconsciousable and likely unconstitutional for a county bureaucrat to make such a profound determination that creates a different standard for adoption in one county versus another.

Regardless, such a policy should be made in an open and transparent process that permits others to present all the evidence. As opposed to a secretive, unknown process that by all accounts appeared to be "create the policy first, justify it later."

Conservatives scream when elected and politically-appointed judges "make the law." But at least the judiciary is a creature found in the constitution. Where are the bureacrats in the Constitution? If Fox is a member of the Executive branch, then his job is to "execute" the law created by the legislative. If he's legislating, then he needs some legislative authority that suggests that the legislative intended such rule-making to be made by the unelected bureacrats. No such legislative deferment exists, however.

Mike Fox rode the death of Marcus Fiesel to garnish headlines and to justify his career switch. (It didn't hurt that Mike Fox also got a nice raise that he needed to help pay for mounting legal fees incurred as a result of a still pending FBI corruption probe regarding Fox's tenure as county commissioner.) Fox was hired over candidates who actually had experience running such an agency. On both the education and experience front, Fox was sadly lacking.

Fox's policy is puzzling because it was the death of Marcus Fiesel that led Fox to head this agency. But Marcus Fiesel died in the custody of married couple. To date, I am unaware of any child dying in the care of a same-sex couple in Butler County. Fox paints a policy with a wide brush that seems to whitewash over that fundamental fact. And he did so with no public notice or input. I wonder what Mike Fox the former state legislature would make of Mike Fox the unelected bureaucrat if he were still in the legislature?


Jill said...

Have you checked PCSAO and OAC regs to see what they say about such policies? There are federal guidelines as well regarding kin and foster placements. I'm not sure I follow all that you've described here, but most entities that place kids in temporary care settings have a whole lot of rules to follow - but ones that generally aren't arbitrary.

Joseph said...

Phil Burress and the nutjobs at Citizens for Community Values call the Butler County policy "common sense".

Why doesn't that surprise me?