Commentary by Terri LaPoint
Health Impact News
It is clear that the effort to protect children from abuse has resulted in many non-abused children being taken away from innocent parents by Child Protective Services. Less than 16% of children are taken from their families for allegations of any kind of abuse (Source), and only 17% of allegations against parents are even substantiated (Source).
In the name of protecting some children, many more children are traumatized and abused by the very system tasked with protecting them. Medical kidnapping and state-sanctioned seizure of children is more common than most people have realized.
Yet parents whose children are taken find that they have less rights than criminals. The right to due process is conspicuously absent from almost all CPS cases. A legislator once told me that she does not care about the Constitutional rights of parents when it comes to child abuse allegations.
Is it possible to protect abused children while, at the same time, protect the integrity of families and the Constitutional or civil rights of parents?
Richard Wexler, the Executive Director of the National Coalition for Child Protection Reform (NCCPR), believes that it is. He writes that his organization:
…believes the only way truly to protect children is to demand civil liberties without exception. There can be no true child protection when a government agency is given virtually unchecked power, almost no accountability, and operates in secret. (Source.)
In a document entitled, “Civil Liberties without Exception: NCCPR’s Due Process Agenda for Children and Families,” Wexler compares child abuse laws to potential anti-terrorism laws.
If the rules that currently apply in family courts were to be applied in the context of terrorism, it is readily apparent that there would be an outcry to the violations of civil liberties created by the fictional proposed laws.
Yet, it happens every day to American families dealing with CPS.
He invites readers to consider what would happen if then-Attorney General Jeff Sessions had proposed legislation regarding terrorism with the following provisions:
Special anti-terrorism police could search any home without a warrant – and stripsearch any occupant — based solely on an anonymous telephone tip.
Any occupant of the home could be detained for 24 hours to two weeks without so much as a hearing – and they’ll probably be detained far longer because, in the special anti-terrorism court set up by this legislation, all the judges are afraid to look soft on “terrorists.”
At that first hearing the detainees may – or may not – get a lawyer just before the hearing begins, and they almost never get effective counsel.
At almost every stage, the standard of proof is not “beyond a reasonable doubt” or even “clear and convincing” but merely “preponderance of the evidence,” the lowest standard in American jurisprudence, the same one used to determine which insurance company pays for a fender-bender.
And in most states, all the hearings and all the records are secret.
The reality is that this isn’t fictional at all – except that it doesn’t apply to alleged terrorists; it applies to families. These injustices are the experience of hundreds of thousands of parents all across the United States of America. Wexler says:
…this hypothetical anti-terrorism law already is the law governing child welfare.
The article lists a number of recommendations that NCCPR has made since 2000 which, if applied, would go far to ensure that the system takes only children who are truly in need of state intervention.
If Constitutional principles and civil liberties were actually followed by all state actors, then children would not be terrorized by our own government taking them away from loving homes.
Transparency and Openness
Much of what happens with Child Protective Services is done in secret. Courts are often closed, and parents are threatened with unconstitutional gag orders if they try to talk about the seizure of their children.
While agencies cite “confidentiality” concerns to the public, bad actors are left free to trample civil liberties like due process, perjury is unchecked, and children are left to be abused in foster care or group homes, or even to be trafficked to pedophiles or pornography rings. Criminal actions are shrouded in a veil of secrecy.
NCCPR calls for the most basic of protections for the integrity of the process: transparency.
Social workers and Child Abuse Pediatricians currently hold almost unlimited power to tear a family apart with no more than their word. Richard Wexler says that:
The power must be checked by accountability. Accountability is not possible in secret.
Nor is accountability possible simply by hiring people with more expertise and assuming they will do the right thing. It’s not supposed to work that way in a democracy. That is why it is so urgent that all court hearings and almost all records in child welfare cases be presumed open.
Attorneys for the parents or the GAL for the child might be permitted to request that a case not be open to the public, but Wexler states:
CPS should not even be allowed to ask for it. CPS has no interest in secrecy other than as a way to cover up its failings.
He points out that:
The most traumatic cases are likely to involve not only child protection proceedings but criminal cases as well. These hearings already are public.
Yet we have never seen nor heard a single account of a child saying that she or he was traumatized by the fact that such a trial was public. Nor do we know of any adult coming forward years after the fact to complain of such trauma.
There are some states that have opened up their CPS court cases to the public, and the results were positive. New York Judge Jonathan Lippman found that:
“It has been 100 percent positive with no negatives … Our worst critics will say it was the best thing we ever did. Their fears were unfounded … I wish other states would do it.”
NCCPR recommends that records, as well as the courts, be open.
The public tends to only hear of the cases where a child was left in a situation that CPS should have taken them out of. These are the horror stories that drive ever more intrusive legislation and help non-profits to secure funding.
But they are not the vast majority of the cases. More often than not, children are removed from good homes, not left in bad ones. Due to the policies of closed records, the media and the public get the wrong idea, and demand action to stop the child abuse crisis.
If other agencies, legislators, and the media had open access to the records, a more accurate picture could be painted. In this context, CPS would be free to comment as well, instead of saying, “There is more to the story, but we can’t tell you, due to confidentiality laws.”
Our experience at Health Impact News has been that parents WANT people to see what is happening. Parents tend to be forthcoming about their warts and failures, because they aren’t trying to pretend that they are perfect parents. They just want people to see that they are loving parents, albeit imperfect, who didn’t hurt their children.
Good Legal Representation
Wexler recommends that:
Quality legal representation must be available to all parents who must face CPS.
In the cases where the parents cannot afford an attorney:
The institutional provider of counsel should have lawyers available 24-hours-a-day, seven-days-a-week, so that they can begin to work on a case from the moment a child is removed from the home instead of only at or after the first hearing – or even later – as usually is the case now.
In any given CPS case, the state has more money and more legal resources at their disposal than the parents, presenting a lop-sided pretense at justice. How can parents fight back against such a huge entity, especially if they were already struggling to make ends meet BEFORE CPS?
A judge in Washington state proposed a novel idea to help “level the playing field,” and it has worked well:
In Pierce County, Washington, the judge in charge of the county’s juvenile courts was dismayed at the escalating rate of terminations of parental rights – knowing that he was dooming some of the children to a miserable existence in foster care.
So he persuaded the legislature to provide enough money for defense attorneys to have resources equal to those of the Attorney General’s office, which represents the state child welfare agency in juvenile court. The result: successful reunification of families increased by more than 50 percent.
Along this line, I would like to propose a legislative mandate that, whenever an allegation by a Child Abuse Pediatrician is heard by a court, the court should be required to consider the testimony of any medical experts who disagree with the interpretation of the Child Abuse Pediatrician or who can attest to a medical condition that explains the child’s symptoms.
The state which pays for testimony against the parents should be required to provide a funding grant to the parents for medical experts who can provide exonerating testimony, in the interest of finding the truth as to whether or not the child was truly abused or simply has a medical condition.
GALS Should Actually Look Out for the Child, Not the State
When teenager Isaiah Rider was medically kidnapped, he tried repeatedly to fire his Guardian ad Litem (GAL). He said that she did not represent either what he wanted or what was best for him. (See story.)
We have heard this story repeated by kids all over the country who are old enough that their voice should be heard. NCCPR has also apparently found this to be the case. They recommend:
Law guardians should act as lawyers. Guardians ad litem (GALs) should advocate for what the children they represent want, even if the GAL does not think it’s in the child’s best interests.
…in most states, the job of the guardian is to fight for what the guardian thinks is best for the child – even if the child disagrees. The guardian may make the court aware of what the child wants but, if the guardian thinks that is bad for the child, the guardian fights against the child’s wishes.
Too many parents have learned the hard way that a vindictive neighbor, a scorned ex, or a hostile relative can destroy their family by picking up the phone and making up lies. While this can waste resources that could be needed for truly abused children, it also serves to open up the door to CPS social workers to go on a “fishing expedition” to find the slightest excuse to take a child and put them into the system.
Before a call is accepted by a child abuse “hotline” and referred for investigation, the caller must be able to demonstrate that s/he does, indeed, have “reasonable cause to suspect” maltreatment.
The caller must be able to offer something more than a guess that a child really is being abused or neglected. To help hotline operators accomplish this goal:
- A rational method must be established for screening hotline calls.
- Anonymous calls should not be accepted.
Of all the sources of child abuse reports, anonymous reports consistently are the least reliable. They’re almost always wrong.
The “Central Registry”
Parents can end up on a “central registry” of child abusers even if the allegations are unsubstantiated. Many see the registry of a gross violation of civil rights, and for good reason. Wexler proposes recommendations to address these concerns:
No one should be listed in a central register of alleged child abusers, and no allegation should be substantiated, until, at a minimum, the family has had an administrative hearing conducted by a hearing officer outside of the child welfare agency. The standard of proof should be “clear and convincing.”
All states have massive databases listing everyone caseworkers suspect of being a child abuser. Most databases also include the names of people even when the accusation was determined to be “unfounded.”
This poses enormous risks to children. Anyone can be declared a child abuser based on no more than a caseworker’s guess. All she has to do is check a box on the form. Then the accused must fight her or his way out.
In some cases, there is no way to fight your way out at all. Some states allow for no appeal of this decision. In other states, the appeal process is long and cumbersome.
Yet a listing in a central register can have profound consequences….
As always, CPS agencies will claim that any curb on their power to effectively blacklist anyone they choose will compromise their ability to protect children. In fact, depriving people of employment based on rumor and innuendo is enormously harmful to children.
- Obviously, if a parent can’t get work, that will affect his or her children.
- If information based on little more than a caseworker’s guess is allowed to pile up in secret files, sooner or later some CPS worker is likely to claim that there is a “pattern” and use that as the basis to take away the children.
Children need protection from the mindless piling up of rumor and innuendo in files about their families. This is particularly true when unfounded reports are kept.
Wexler recommends that:
When a report is “unfounded” all records should be expunged within 30 days. The reason unfounded reports should be expunged is the same reason CPS agencies want to keep them.
Once again, they say they are needed to detect “patterns” or, as they often like to put it “where there’s smoke, there’s fire.” But a pattern of rumor and innuendo is so misleading that it is worse than no pattern at all. In child welfare, where there’s smoke, there often is only smoke – and no one can see clearly through smoke.
Children need relationship with their parents. The parent/child relationship, no matter how wonderful or dysfunctional, is crucial to a child’s development. In most cases, there is no justifiable reason for the state to withhold these visits. NCCPR’s recommendation is:
From the moment a child is removed until the first hearing at which all sides are represented, the child welfare agency shall be responsible for arranging daily visits, unless it can show, by clear and convincing evidence, that this would cause severe emotional harm to the child.
Advocates universally tell parents facing CPS to “record everything.” Wexler takes it a step further:
All interviews conducted by CPS personnel in the course of child maltreatment investigations – not just interviews with children – should be, at a minimum, audiotaped, and preferably videotaped.
Interviewees must be informed that their statements are being recorded. Information from any interview that is not taped should be inadmissible in all court proceedings.
It is the experience of many, if not most, parents dealing with social workers or Child Abuse Pediatricians that the workers say one thing to them and another in court, or they actually fabricate information that is presented as fact to the courts.
A case could be made that parents may do the same thing. Recordings help to keep everyone more honest.
A basic tenet of communications theory is that people tend to hear what they want to hear or what they expect to hear. Everything we hear is filtered through our life experiences, our beliefs, and our prejudices.
There is no excuse not to require that every interview done by a CPS worker in the field be, at a minimum, audiotaped and every interview done at a CPS office or similar facility be videotaped.
As important as requiring taping itself is a requirement that interviews that are not taped be treated, in effect, as though they don’t exist.
In criminal cases, evidence obtained improperly cannot be admitted – no matter how compelling that evidence may be. The requirement is an attempt to be sure that police are scrupulous about the rights of citizens when they gather evidence.
If taping is “required,” but notes from interviews that were not taped still can be used in court, it is an invitation for apps to “fail,” workers to “forget” and batteries to “die” on a regular basis.
Raise the Bar
The standard by which a parent can be “substantiated” as abusive or neglectful is low, and as we have seen repeatedly in our investigations, parents may be essentially declared guilty without any real evidence required. Wexler takes issue with this and proposes that the bar be raised:
The standard of proof in all court proceedings should be raised from the current standard in most states, “preponderance of the evidence,” to “clear and convincing.” The standard also should apply when a worker decides to “substantiate” alleged maltreatment.
There are few punishments one can inflict on a child that are more severe than needlessly tearing away her or his family. And yet, when it’s time for courts to decide to place a child in foster care, they do not apply the standard used to convict someone accused of murdering a child, “beyond a reasonable doubt,” or even the middle standard, “clear and convincing” evidence.
Instead, courts in most states apply the lowest standard of proof, “preponderance of the evidence.” As we noted at the start of this report, this is the same standard used to decide which insurance company pays for a fender-bender.
As a result, many more children suffer abuse at the hands of the state:
Opponents say, in effect, that if caseworkers ever actually had to provide real evidence that a parent did something wrong before they took away the children, then children might be left in unsafe homes.
But if the standard is not raised, even more children will be subject to the unconscionable trauma of needless foster care – and some of them will be abused in foster care itself.
Protecting Parental Rights Protects Children
The bottom line of all of these recommendations is that we must protect the Constitutional civil liberties of parents. The recommendations fall into several basic categories which already apply to alleged criminals accused of even the most heinous of crimes:
- open and transparent courts,
- quality representation, and
- actual evidence required before deciding guilt and tearing apart the family.
It is incomprehensible that parents are not already afforded these same rights, when what is at stake is more important and valuable than anything else – our children.
In doing so, we will then ensure that children are indeed protected, who may have more to fear from the state than they ever did from their parents.
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