Thursday, April 18, 2019

Child welfare in New York City: Fieldston’s failure

Parents of a biracial 6th grader complain about discrimination at the Ethical Culture Fieldston Schools. The posh private school allegedly retaliates with a false allegation of child abuse. When the family sues, the school attacks the family in a mass email.

The school says everything it did was legal. But was it ethical?

 By Richard Wexler, NCCPR Executive Director* 

The Fieldston Middle School
The Fieldston School, in the Riverdale section of the Bronx, one of the Ethical Culture Fieldston Schools (ECFS), is one of those private schools that the New York City tabloids like to refer to as “posh” or “tony” or “ritzy.”  (The New York Times tends not to do this, probably because a lot of Times journalists send their children to Fieldston.) These adjectives tend to make alumni cringe. They also happen to be accurate. 

            I know this because I’m one of those alumni (class of 1972).  My relationship with the school has always been ambivalent.  While I was there, the school and I had a prolonged difference of opinion over which of us was underachieving.  But never in the nearly 47 years since I graduated have I been as ashamed of Fieldston than I am right now.  But not, perhaps, for the reason those who have read about the school lately may think.

            If the name of the school seems familiar it’s probably because in March students of color and their allies took over a building and locked administrators out.  The immediate cause was the failure of the administration to respond adequately to a racist video, but that was only the final straw.  Other concerns go far deeper (you can read about it all here).  The administration agreed to all of the student demands, and a geyser of conciliatory rhetoric has burst forth in emails to “the school community” from the administration, particularly Head of School Jessica Bagby.

            But months earlier, Fieldston did something far worse than the way it handled the racist video.  At least the video was initiated by a couple of students. The earlier incident involves actions of staff and administrators, including Bagby.  And this time Bagby’s rhetoric has rubbed salt into a family’s wounds.

            The family alleges that, in retaliation for their raising issues involving racial bias, Fieldston filed a false allegation of child abuse against them; causing enormous trauma for the child and his younger sibling.   Then, after the family sued, the school attacked the family in a mass email.

            The school denies any retaliation or racial bias.  It uses the same justifications authorities always use when families are harmed by false allegations, justifications that boil down to: We were just trying to keep children safe and anyone who wants to call us out doesn’t care about child safety.  In fact, though of course it wasn’t their intent, if anyone made children less safe it was a person or persons at the Ethical Culture Fieldston Schools.  All of the time, money and effort wasted on the false allegation initiated by someone at ECFS was, in effect, stolen from finding some other child in real danger.

            Unfortunately, it is not unusual for schools to use reports alleging child abuse as leverage during disputes with parents.

            But Fieldston styles itself as a cut above other schools, especially when it comes to ethics. “Ethical” after all, is the school’s first name.
Founder Felix Adler said the goal of the
Ethical Culture Fieldston Schools is
"to put it boldly, to train reformers."

            Fieldston is a school that prides itself on being a leader in “progressive” education. It is a school whose stated mission is to “inspire … ethical individuals who aim to make the world more humane and just.” It is a school whose founder, Felix Adler, declared that its mission is “to put it boldly, to train reformers.” Yet late in 2017, the Ethical Culture Fieldston Schools unleashed on one of its own students and his parents the full power of a system – child protective services – with almost no checks and balances, a system that regularly runs roughshod over due process and civil liberties, a system that is permeated with racial and class bias. 

At best, the reasons presented by administrators reflect a disturbing ignorance of how much harm can be done to children by a child abuse investigation.  At worst - and this is what the family alleges -- it was a deliberate act of racial discrimination and retaliation.

But Fieldston doesn’t just defend its behavior in this one case.  A school which just saw one of its buildings occupied because of its insensitivity to racism now offers enthusiastic endorsement of a massive system of reporting of families to child protective services  – a system so rife with racial and class bias that a recent study found that a majority of African-American children will be caught in its net at some point during their childhoods.  (And by the way, a system put in place with no scientific evidence of effectiveness.)

To what extent does that bias in child abuse reporting extend to Fieldston’s “grassy banks and wooded ways”? (That’s from the school song.)  One of the questions I posed in an email to Bagby was how many times during the 2017-2018 school year employees of ECFS called the state child abuse hotline – and the racial breakdown of the alleged victims.  The school did not reply.

But a school truly committed to progressive values, a school dedicated to training reformers, would be fighting to reform this system, not extolling it. 

           Imagine if a school that proclaims itself a champion of social justice allowed its security guards to stop-and-frisk a Black student without cause.  Then, in addition to defending the individual guard, the school proclaimed that stop-and-frisk is essential to public safety for the entire nation and any complaint about it risks jeopardizing this vital part of law enforcement.  That is analogous to Fieldston’s behavior in this case.

            Last month, a judge denied Fieldston’s motion to throw out the suit before trial.  The school has appealed.  After I contacted Bagby by email with a series of specific questions and a request to see any documents the school wanted to share, she passed my request on to the school’s lawyer.  He provided Fieldston’s brief for the school’s appeal.  But he said “it would not be appropriate for me to provide other details at this time.”

The case

            In the fall of 2017, Columbia University Professors Hillary Hallett and Chris Brown were looking forward to sending their son, whom I’ll call Adam (not his real name) to Fieldston.  Prof. Brown took a second job so the family could afford the $53,000 tuition.  Brown says that Adam, too, was “really excited about the opportunity to go there.” He’d done extra work and “invested a lot of hope and enthusiasm.”

            But that would change quickly.  Except as otherwise noted, all of the following are allegations from the lawsuit:

            The problems began shortly after Adam, who is biracial, enrolled in sixth grade. Adam was upset when another biracial student told him a white classmate he’d known before coming to Fieldston -- and thought of as a friend  -- had made racist comments. Adam asked his white friend what had happened.  In addition, Prof. Hallett complained to the school about practices she felt encouraged segregation.

            Then, in November 2017, the white child’s parents complained to the school about their son being questioned by Adam.

            Shortly after, Adam injured his arm while playing football during recess.  The injury was minor.  His parents did everything asked of them by their own pediatrician and by Fieldston, and Fieldston had full documentation for this.  Furthermore, the parents had signed forms allowing the school itself to obtain medical care for Adam if he never needed it and contact information for Adam’s doctors.

            But a few days later, someone at the school reported Adam’s parents to the New York State Child Abuse Hotline, alleging that the parents failed to properly respond to the injury and also that Adam had twice arrived at school hungry – notwithstanding the fact that the school provides breakfast to every student who wants it.  (Let me confess here and now:  There were days when I skipped breakfast before heading to Fieldston – and back then you could not get breakfast at the school. Nevertheless, my parents were never reported as alleged child abusers.)

            Three days after the call to the hotline, at 8:30 p.m., the family found at their door a caseworker from New York City’s Administration for Children’s Services (ACS).  The worker said ACS had received a report from someone at Fieldston. Adam was put through all the inherent trauma of a child abuse investigation.  He was left emotionally distraught; terrified that he would be taken from his parents.

The report was wrong

            Perhaps it was just coincidence that a report based on so little was phoned in to the hotline  But this much we know for sure: The report was wrong.
just days after the parents started complaining about things that were happening at the school.

            We know this because the ACS caseworker declared the case unfounded.  In New York you have to be demonstrably innocent for that to happen. 

In New York, as in every other state, a finding that abuse or neglect is “substantiated” (in New York the term is “indicated”) does not require a trial.  It does not require both sides to present evidence, and it does not require proof beyond a reasonable doubt.  It doesn’t even mean that the worker has to think it is slightly more likely than not that abuse occurred.

            In New York “indicated” means only that a caseworker believes that there is “some credible evidence” of abuse or neglect. Even if there is more evidence of innocence, the worker is supposed to check that “indicated” box.  But in this case – and, indeed, in more than 60 percent of cases investigated by ACS, there was not even “some credible evidence,” so the case was deemed unfounded.

Prof. Brown said in an interview that the family pediatrician was “horrified” that Fieldston had rushed to call the hotline.  “She could not understand why the school had not talked to her first.” 

            The only abuse suffered by Adam was the emotional abuse of the investigation, an investigation initiated needlessly and, the parents allege, maliciously, by the Ethical Culture Fieldston Schools.

The damage done 

            The ACS investigator interrogated Adam, and a younger sibling.  He physically examined them and photographed them.  The next day, the investigator showed up at Fieldston to interrogate Adam again.

            But first, according to the lawsuit, his Fieldston guidance counselor pulled him out of class to talk to him.  At age 12, Adam was old enough to understand what ACS can do.  He told the counselor he was terrified of being taken away from his parents. 

Initially that fear caused sleep disturbances.  Then, as the school year progressed Adam suffered from what his mother describes in an email as “a cascading series of psychosomatic symptoms at school.”  There were headaches and stomach aches.  He began seeing a therapist to help him cope.

            One day in January, 2018, Adam experienced chest pain at school – but he wouldn’t tell anyone at Fieldston – because, the suit says, he was afraid it would lead to “further retaliation against the family.”  The chest pains got worse, and by the time he got home they were so bad the family had to seek emergency medical treatment.

            He wasn’t the only one who was fearful. One day Adam had some slight swelling near his eyes because of a mosquito bite.  Concerned about further retaliation, Adam’s father, Prof. Brown, got a note from Adam’s pediatrician explaining what happened – and delivered it personally to an assistant principal.

            Later that day Adam’s science teacher notified his mother, Prof. Hallett, that Adam appeared upset.  She called the guidance counselor to ask her to let him speak to Adam to be sure he was o.k. But, the lawsuit says, the counselor would only let Adam talk to his mother on speakerphone – so the counselor could monitor the conservation.
            Through it all, Adam never knew who, exactly, had called the hotline. So he felt he could trust and confide in no one at Fieldston’s middle school.  Eventually, an agreement was reached that when he had a problem he would see the nurse or counselors at Fieldston Lower – the elementary school on the same campus.

            Repeatedly, the parents allege, they would ask for help so Adam could better cope with the stress caused by the false allegations and its effect on his schoolwork. They say they got none.  Says Prof. Hallett: “They never showed any interest in the welfare of a newly 12-year-old kid who was brand new to the school and navigating the pressures of just starting middle school.”  Prof. Brown says the school “just left him kind of dangling.”

            The parents think the school wanted to be rid of the family – and in that much, they have succeeded.

            But not before the family filed their lawsuit.

The school’s response

            It’s worth comparing the immediate response to that lawsuit to the response to the recent student protests.

            After the group called #StudentsOfColorMatter occupied a building and issued their demands, gained a ton of well-deserved support and generally created a p.r. nightmare for Fieldston, Bagby, the Head of School, went into full conciliation mode – praising the protestors and putting enormous emphasis on the need for civility.

            In one email to the entire “school community” – students, parents, faculty and alumni – she wrote about the need for “…eschewing within our own school community the sanctimony and mean-spiritedness of our current national discourse that resorts to attacks on individuals” and stressing the need to avoid branding anyone with “labels and reprisals from which they cannot recover.” 

            Compare that to the email Bagby sent to the same “school community” in late March, 2018, right after the family filed its lawsuit.  Bagby contented that the school was simply acting in accord with state law which makes educators “mandated reporters” of child abuse. 

But New York State law does not require even mandated reporters to report anything and everything.  It requires them to report only when they have “reasonable cause to suspect” abuse or neglect. 

Bagby then declares that the demonstrably racially biased system of mandatory reporting “is vital to the safety and security of students across the country.”  Again, to see the problem with this, substitute “stop-and-frisk” for “mandated reporting.”

But even with that, had Bagby simply claimed the school had no choice, was following the law, and supporting child safety she would have been wrong, but at least the tenor of the email would have been in keeping with her own later statements about civility.  But she didn’t stop there.  She wrote:
 While the family has now filed a lawsuit, you should be assured that our school's child safety policies will not be compromised. We are saddened that anyone in our community would try to undermine this important system with a baseless lawsuit that puts profiteering ahead of students' safety.

            So now, a 12-year-old boy gets to read that he and his parents are engaging in “profiteering” in an email to the entire “school community.”  He can read a similar statement from the school in a story about the case in the New York Post.

            That prompted the family to amend their lawsuit to add a claim for libel.  In its response Fieldston denies that the statement about “profiteering” is libelous under New York State law.  But my concern, as an alumnus of the Ethical Culture Fieldston Schools is not just whether the statement was legal. My concern is: Was it ethical?

           Even if a court rules that the statement was not libelous, it was still gratuitous, cruel and unworthy of an “ethical culture” school.

            The very first sentence of Fieldston’s appellate brief declares that “This case is an assault on the mandatory reporting system that protects children in New York against potential abuse and mistreatment.”  In fact, the suit is nothing more than an attempt to seek redress to the harm done to one child by one school’s alleged abuse of the system.

            But more disturbing to me is the fact that, over and over and over Fieldston’s brief doesn’t just defend but extols the “mandatory reporting system.”  Again, substitute “stop-and-frisk” and you can see the problem. 

            By the way, there is no actual scientific evidence that mandatory reporting improves child safety.  The laws were passed decades ago, with no study, in the midst of a wave of hysteria over child abuse.  As the National Research Council explained in 1998:

“Mandatory reporting requirements were adopted without evidence of their effectiveness; noreliable study has yet demonstrated their positive or negative effects on the health and well-being of children at risk of maltreatment, their parents and caregivers and service providers.”

So there is actually no scientific evidence in support of Bagby’s claim that the mandatory reporting system “is vital to the safety and security of students across the country.”

And if this system really makes children safe, how, exactly, is Adam safer now than he was before he enrolled at Fieldston?

“The impact on him is lasting,” says Prof. Brown. “And the impact on our family has been lasting.  It’s hard for me to imagine a white family being treated the same way.”

            Indeed, to the extent that anyone wound up jeopardizing safety here it was a person or persons at ECFS.  Caseworkers at ACS, like their counterparts in most of the country, constantly complain about being overloaded.  When there are high-profile tragedies, it’s almost always because of that overload.  False allegations divert workers from real child abuse in the same way false alarms divert firefighters from real fires.  

            So truly keeping children safe, truly allowing “this important system” to function well, requires that mandated reporters know when to report and when not to report. In New York, that means reporting when there is “reasonable cause to suspect” abuse or neglect.  I have seen nothing to indicate that this case qualifies.

The school’s defense on appeal

            Since Fieldston declined to provide any response beyond a legal brief, I know only its response concerning the law.  Fieldston’s legal defense boils down to this:

            Yes, state law says you can’t make a malicious false report of child abuse. But state law also protects the identity of reporters.  So even if a report was made maliciously, unless you happen to know who did it, there’s not a damn thing you can do about it!  In this case, the family argues that a number of school officials share responsibility. Fieldston says only the person who made the actual phone call is responsible, the family doesn’t know who that is – so tough luck. (And, of course, they say, this Catch-22 is vital to keep children safe.)

            In fact, it is for just this reason that, for decades, NCCPR has proposed an exception to reporter confidentiality when a family can persuade a judge that a report was, in fact, malicious.  One would think a school committed to civil liberties and racial justice would embrace such a proposal.

            But again, to this alumnus even if Fieldston is legally right, that’s not good enough.  The question is: Is Fieldston ethically right?

            Asked what he thinks of Fieldston now, Prof. Brown quotes one of the students who took part in the recent protests: “The school is not the place it pretends to be.”

*-I write all of the posts on this blog, but in this case, I thought a byline was appropriate

Monday, April 15, 2019

News and commentary round-up, week ending April 15, 2019

For a long time, I’ve been sending a weekly round-up of news and commentary making the case for family preservation to advocates across the country.  Beginning this week, I’m posting the round-up here for everyone to see.

● Dorothy Roberts, professor of law, sociology and civil rights at the University of Pennsylvania (and a member of NCCPR’s Board of Directors) has an article in Harvard Law Review examining the dangers of predictive analytics in child welfare and criminal justice.  The article reviews Prof. Virginia Eubanks’ book, Automating Inequality.  “In this Review,” Prof. Roberts writes, “I expand Eubanks’s focus on state welfare programs to include a broader range of systems, with particular attention to the criminal justice system, and Eubanks’s focus on poverty management to include white supremacy.” Read the article here.

● The Chronicle of Social Change looks at the work of Prof. Martin Guggenheim, co-director of the New York University School of Law Family Defense Clinic, the father of the family defense movement (and the President of NCCPR).

● Last week on this Blog I discussed an appalling case in Arizona. A lot of the excellent reporting on the case was made possible by the fact that the initial court hearing in the case was open to the press and the public.  Now, a different judge has kicked the reporter out. Here’s her follow-up story.

● Gothamist reports on a New York City Council hearing at which the city’s Administration for Children’s Services came under fire for harassing families when parents smoke marijuana.  (Poor families, that is. Affluent parents can even brag about smoking pot without fear of reprisal from child protective services.)

● In the Chronicle of Social Change Vivek Sankaran has a column called “While We Celebrate [adoptions] Some Children Grieve.” He writes: “…[B]efore courts take the dramatic step of permanently ending a child’s relationship with their birth family, they should ensure that the decision makes sense for the specific child before them. At a minimum, this must include hearing the child’s voice, and considering other alternatives that might give the child a permanent home while also preserving important relationships.”

● And finally, a rerun of sorts.  The Pulitzer Prize for editorial writing was awarded to Brent Staples of The New York Times for a body of work that included this editorial condemning what can best be called “crack baby” journalism.  Unfortunately, at almost exactly the same moment that brilliant editorial was published, the Orange County Register was reviving this discredited genre, something I discussed in WitnessLA  Perhaps the Pulitzer will help drive home the message to the Register and others.

Wednesday, April 3, 2019

Child abuse “fatality review”: Rearranging the file cabinets on the Titanic

A government agency review of a child abuse death in Pennsylvania profanes the memory of the victim – Grace Packer – or as she always should have been known, Susan Hunsicker

She was born Susan Hunsicker.
When she died, at age 14, she was Grace Packer.
Child welfare systems, and a lot of reporters who cover them, put a lot of faith in the concept of child abuse “fatality reviews.”  Get experts to look at what went wrong, the theory goes, and we’ll learn the lessons we need to stop these tragedies from ever happening again.

Journalists vent much outrage at the lack of such reviews and/or the failure to make them public – and in fact, if you’re going to do them, they should be public. But too much faith is put in “fatality reviews” as a tool for systemic reform.

That’s because the whole exercise is based on two false premises:

● First, it assumes that broad, general lessons can be learned from the most extreme, most aberrant cases.  In fact, a process of random case review would be vastly more valuable, since you’d be more likely to find out what typically goes wrong. Such a process also would be a constant reminder that the errors go in all directions, with some children left in dangerous homes even as many others are taken from homes that are safe, of could be made safe, with the right kinds of help.

● Second, it assumes that reviews are done by people with the same professional experience, the same outlook and the same general mindset as the people who screwed up in the first place will produce get fresh, useful insight – instead of a collection of boilerplate, blather and excuses.

The failure of fatality review is most glaring when the agency is, in effect, investigating itself because the death occurred in a foster or adoptive home.

Case in point: A fatality review that actually profanes the memory of the child who died, a 14-year-old who was born Susan Hunsicker, but died as Grace Packer.

The facts of the case

When Susan Hunsicker of Norristown, Pa., and her brother were taken from their parents, Rose and Rodney Hunsicker, the ostensible reason was that her parents were not able to protect the children from abuse by others. 

Apparently based on the assumption that they could do a better job of this, a county child protective services agency (or as they’re usually called in Pennsylvania, Children and Youth Services) placed the child with a foster mother who helped her husband rape the girl.  After the first rapist was convicted, she hooked up with a boyfriend whom she helped rape the girl again - and torture her, and murder her.

If the horrible facts sound familiar, but the name does not, that’s because, as I noted earlier, by the time she was raped, tortured and murdered her name was no longer Susan Hunsicker. It was Grace Packer.  Her foster mother, Sara Packer, had been allowed to adopt her and change her name.

There are two salient facts about Sara Packer. 1. She had a penchant for bringing child rapists into the   2. She worked for the private foster care agency that approved her as a foster parent – and placed Susan and a sibling in her home.

There is one salient fact about Rose and Rodney Hunsicker: They almost certainly could have raised their daughter safely with some help.  It can be said with absolute certainly they’d have done better than the system that took their children away from them.

As the Philadelphia Inquirer reported in 2017:

“[Their lawyer David Tornetta] said he came to know the Hunsickers as a loving couple who were unemployed but could have become better parents with some help. … "’I can't imagine what that young child went through," Tornetta said. "I guarantee you if that child had been in Rose and Rodney's care, it wouldn't have been anything like this. Nothing, nothing.

Tornetta told WHP-TV the parents jumped through all the hoops thrown in their path by child protective services. 

But it didn’t matter.  The system wanted Sara Packer to have these children, and that’s what was going to happen.  So the Hunsickers’ parental rights were terminated.

How this affects the fatality review

As a result of all this, anyone who reviews the case has strong incentives to willfully blind themselves to the real issues.  That is what happened in the Susan Hunsicker fatality review. (Perhaps we can restore some of the dignity stolen from her by the review by at least calling her by her rightful name.) 

The format of the document is odd – in effect, two reviews in one: one review done by counties involved in the case, the second done by the state, which simultaneously responds to the county review. Nevertheless, the report is remarkably revealing – but not in the way its authors intended.

The report reveals a system mired in minutiae and buck passing.  Over and over one reads recommendations that boil down to: Counties: You should do this. State response: We’re already doing it. If you don’t want to face the real issues, you point fingers at each other.

The report is, almost literally, a case of rearranging the file cabinets on the Titanic.  At one point it  
reveals a system whose idea of reform is “Establishing protocols regarding file organization throughout all counties …” The state’s response to another recommendation: “[T]he Resources and Cross-System workgroup of the PA Child Welfare Council will be reviewing this matter.”

Wow. Don’t you feel better already?

The recommendations themselves usually amount to little more than the equivalent of cutting and pasting from some manual somewhere about best practices. Were the circumstances not so tragic, the report would read like black comedy – something that might turn up in an episode of The Office.

Worst of all, of course, everyone overlooked the elephant in the room: Susan Hunsicker never should have been taken from her own home.  As long as CPS agencies don’t understand that children such as Susan Hunsicker can and should remain safely in their own homes with the right kinds of help, these tragedies will happen over and over.

“Misinformation … reported as truth”

It is sad but unsurprising that the reviewers gladly talked to caseworkers and supervisors but, apparently, never spoke to speak to Susan’s birth parents.  Were they too afraid of what they would learn?  Such an interview would seem particularly useful in light of one of the few findings from the county report that is useful:  “Reports provided to Lehigh County [by the private agency overseeing Susan’s foster care] contained many inaccuracies including wrong dates, and this misinformation was then reported as truth.”

Did it not occur to anyone to ask how much more misinformation has been reported as truth in this case – particularly about why Susan was taken away in the first place?  How many more children are trapped needlessly in foster care because of “misinformation … reported as truth”?

Making matters worse, the counties, in their report, have the gall to whine about how “overwhelmed” they are.  But what’s overwhelming them is the deluge of false allegations, trivial cases and cases in which poverty is confused with “neglect.”

Recommendations that would make things worse

Some of the recommendations made by the counties in their report would make this worse.  They suggest toughening enforcement of penalties for “mandated reporters” of child abuse who fail to report anything and everything.  That will only further scare them into further overloading the system with false reports.  That will both increase the chances of more children needlessly removed from their homes – like Susan Hunsicker – and more children in real danger being overlooked.

Another recommendation seems to suggest in effect, that agencies treat enough false reports as, in itself, evidence of abuse or neglect. That would encourage more malicious reports, as in: “If I just call often enough, they’ll have to substantiate it!” Still another recommendation would needlessly slow down reunification.

It’s the same idiocy that led to passage of similar laws in the wake of the revelations of abuse by another Pennsylvania foster parent – Jerry Sandusky. 

Then, having shown no vision, no insight into their own failings and no creativity about solutions, the county report says: Everything will be fine if you just give us more money! But Pennsylvania already spends on child welfare at the ninth highest rate in America  even when rates of child poverty are factored in.

When the children are inconvenient – institutionalize ‘em!

But it gets worse still.

Having ignored the urgent need to keep children out of the system entirely, they actually recommend making it easier to use the very worst option for children – institutionalizing them. (Of course, they couldn’t know that this recommendation would become public just weeks after still another institution was exposed as a hellhole -- Pennsylvania’s own Glen Mills.)

But even when they’re not Glen Mills, Institutions don’t work --  except for CPS agencies. They can use institutions to get youth like Susan Hunsicker, whose problems the system did so much to cause in the first place -- off their hands and make them someone else’s problem.

The William Barr approach to full disclosure

A page from the report indicates how little
the State of Pennsylvania really wants us to know.

And finally, it’s a good thing there have been detailed news accounts describing what happened in this case, because it’s impossible to figure out from the public version of this report. That part of the report has been redacted into meaninglessness.  In fact, trying to figure out what happened to Susan Hunsicker based on this report is like trying to understand the Mueller Report based on William Barr’s summary.

Laws such as the Child Abuse Prevention and Treatment Act put a lot of faith in fatality reviews. So does the execrable report from the so-called Commission to Eliminate Child Abuse and Neglect Fatalities.

But, as the report on the death of Susan Hunsicker makes clear, fatality review can be fatally flawed.

Monday, April 1, 2019

Child welfare in Arizona: When CPS sends in the “SWAT team” – literally

● Heavily-armed police breaking down the door is getting all the attention, but what happened afterwards is worse – because what happened afterwards happens all the time.

● The children were thrown into separate foster homes – and kept there, in part, because of an incident in which the father behaved like the executive editor of The New York Times.

UPDATE, APRIL 15: Perhaps we all should have known this would happen. A lot of the excellent reporting on this story was made possible by the fact that the early court hearings were open to the press and the public.  But last week, a different judge kicked out the Arizona Republic reporter who has been writing about the case.  Details here.

OK, I admit it. If a parent emailed me and said a police SWAT team broke down their door and took away their three children – all because one child had a high fever and had not been vaccinated – I would have rolled my eyes and deleted the email.  So it’s a good thing that, when it really happened in Chandler, Arizona, it was caught on video by a security camera:

But though it’s the video that’s getting the case national attention, what happened after the police broke down the door is even worse.  That’s partly because, while sending in what certainly looks like an actual SWAT team is very rare, everything else done to the children in this case is standard operating procedure. 

It’s because of the standard operating procedure that even now, more than a month later, all three children remain trapped in foster care.  

For at least the first 18 days, two of the children had only one visit with their parents, the third had none. They also were separated from each other, leaving them nothing and no one comforting and familiar as they were placed with separate sets of strangers.  (Now, after pressure from the court, they are at least together with grandparents.)

The children’s suffering was exacerbated by a child protective services agency apparently out to wreak vengeance on the parents for daring to tell their story to the media – and that, too, is common.  But even without that extra bit of cruelty, the case reveals how children are harmed by the routine way the system functions in thousands of cases every year.

All of this is why it’s so important to study this case, which we can do thanks to excellent reporting by Dianna Nanez of the Arizona Republic, and because in Arizona court hearings in child welfare cases are open.  In this case the hearing stayed open despite the desperate efforts of Arizona’s Department of Child Safety (DCS) to close it.

The ugly incident

On February 25, Sarah Beck took her two-year-old to the doctor.

So let’s stop right here.  No one forced Ms. Beck to do this.  She saw that her child was sick and took him to the doctor, as any loving mother would do.  If she really wanted to neglect her son’s medical needs she’d have just stayed home.

OK, back to the story:

The child was lethargic and had a fever over 100 degrees – some news accounts say 105.  The child had not been vaccinated, which is legal in Arizona. (I’ll circle back to that element of the case at the end of this post.) 

Fearing the child might have meningitis, the doctor urged Beck to take the child to the hospital. But after they left the office, the child was laughing and playing with siblings. So Beck took her  son’s temperature again. It was down to 102.  Later that evening it was down to 100. 

Having shown the judgment to take him to the doctor when the fever was high, it’s not a stretch to think her judgment was reasonable when, the fever having done down, she did not take him to the hospital.

Ironically, one of the reasons Beck was afraid to go to the hospital was fear that, because they had not vaccinated their children, the parents would be turned in to DCS.  Another factor, the father told Phoenix television station KPNX: They couldn’t afford the cost of an unnecessary trip to the E.R.  (He also told that to the police in a phone call more than an hour before they kicked down the door.)

When the doctor found out that Beck had not taken the child to the hospital, she called DCS.  The DCS worker then contacted Chandler  police to go to the home and do a “welfare check” on the child. A caseworker also was on the way to the house.

Why call the cops?

OK, let’s stop again. Why call the police at all?  There was nothing to indicate the parents were dangerous or the caseworker’s life would be in danger.  Why not just send the caseworker?

Back to the story:

The police knock on the door. No one answers. A neighbor sees what’s going on and tells the police that Beck “is a good mother.” The police ask her to call the home.

Meanwhile, the caseworker has shown up.  The father, Brooks Bryce, calls the police back, even as the boy is sleeping in his arms. He declines to let the police in.

DCS gets a warrant to enter the home and remove the children. About an hour and 20 minutes after the phone call with Bryce, police knock and got no answer.  Bryce says the family didn’t hear the knock, because they were sleeping in the back bedrooms – “with their sick children.”  (The other children had illnesses that were not serious.)

And then, this happened:

The father came out of the house with his hands up, as instructed, Ms. Beck came out holding her son in her arms.  The son was taken away. So were the other two children.

The uglier aftermath

So now we get to the part that’s typical.

The three children, ages 6,4,and 2, are taken from their parents – and taken from each other - -each placed in a separate home with total strangers. Think of it as the Donald Trump Mexican border approach to child well-being.  For at least two-and-a-half weeks two of the children got to visit their parents only once; the toddler didn’t get to see them at all.

This is, by the way, the age when children are most likely to think that the removal was their fault, that they had done something terribly wrong and now they were being punished – a perception that, I suspect, is reinforced when heavily-armed police break down the front door, point guns and then take you away.

None of it was necessary.  Even if one assumes there was a need to check on the health of the children, once that was done, and any necessary medical treatment was provided, there was no reason to keep the children away from their parents for another minute.

But wait, you say, what if the parents “neglect” their children’s medical needs in the future?

Well, first of all, there’s no evidence they neglected the children’s medical needs in the first place.  It’s entirely reasonable not to take children to the E.R. if a fever spikes and then goes down again.  But even if one thinks what happened on Feb. 25 was neglect, a court simply could have ordered DCS to make random visits to the home (without an accompanying SWAT team) to find out.

The ultimate fishing expedition

But here’s the problem: Once an agency such as DCS enters your life it’s the ultimate fishing expedition.  If doesn’t matter if the original reason for breaking down the door was absurd. Once in the home, they can put everything the family does under a microscope. And since no family can come out 100% perfect under that kind of scrutiny, they’re bound to find something.

So let’s begin with this, from the Arizona Republic account of the court hearing:

The state's attorney argued that the children shouldn’t be returned to their parents yet because they’d been hostile to DCS workers and weren’t cooperating.

Imagine that!  After having heavily-armed police break down their door, and having children taken from their arms at gunpoint, the parents allegedly were “hostile to DCS workers…” 

I’d be more worried about the parents’ mental health if they weren’t hostile to DCS workers. 

As a sympathetic state legislator pointed out:

“It doesn’t say anywhere that after your kids are taken, after police bust down your door, that you have to be nice to DCS to get your kids back.”

Well no, not in writing. But it’s actually the First Unwritten Rule of child protective services all over America.  It even has a name, “the attitude test.”  (And it cuts both ways.  Adults who really have abused children and are “system wise” know that the best way to sucker a caseworker is to suck up to the caseworker.)

Now, back to DCS’ objections to reunification, as described by the Arizona Republic:

[The lawyer for the state] said the parents had attended a DCS visit with members of [a family advocacy organization, the] Arizona DCS Oversight Group who were combative toward DCS workers. He said the grandfather had tried to videotape a meeting with DCS, and recording is not allowed to protect the privacy of the children.

OK, let’s unpack this one. 

There is nothing wrong with bringing allies to a meeting. In a few, enlightened child protective services agencies, it’s even encouraged. As for the videotaping, as the parents’ attorneys pointed out:

The grandfather did what most people would think they had the right to do - record government officials.

And how, exactly is making such an attempt relevant to whether the children would be safe in their own home? 

But what really has DCS upset, of course, is that the parents spoke publicly about what DCS did to their children.  That’s why DCS asked that the court hearings in the case be closed. 

In most states, they wouldn’t even have to ask.  Fortunately, Arizona is different.  As the judge in this case, Jennifer Green, put it: “In Arizona, we like our courts to be open.”  As for the privacy excuse, the judge did the obvious: prohibited disclosure of information identifying the children, as is routine in states where these hearings are open.

Pile on the hoops and make the family jump

Another standard operating procedure: Pile on a cookie-cutter set of conditions parents must meet before their children get to live with them again, conditions unrelated to the actual accusation and usually unrelated to any actual problems the family might have. 

In this case, the state demanded the parents undergo psychological evaluations – in spite of the fact that neither has a history of mental illness. Why? Because child welfare agencies want to reframe every problem as a mental health problem, and they use the evaluations as fishing expeditions. So they are required in almost every case. 

In 2017 the Arizona Court of Appeals blasted DCS for how it handles these evaluations.

The father fought the psych eval demand, and lost. But he agreed to another irrelevant demand – that he undergo drug and alcohol testing, despite the apparent lack of any evidence of a drug and alcohol problem.  (But, of course, that very fact means this case probably will be listed as a case involving suspicions of substance abuse, thereby inflating the proportion of such cases, and fueling the hype and hysteria over drug use and child abuse.)

And, apparently, there were so many other requirements, DCS couldn’t keep track of them all.  From the Republic story:

A DCS investigator, a former police officer, took the stand. She said … [the parents] weren’t following steps to regain custody of their children. 
One of the parents attorneys asked the DCS investigator to outline specific steps the parents must follow to get their children back. The caseworker said she couldn’t remember any of them.

There are two dymanics going on here: The routine piling on of irrelevant conditions and a few extra twists of the knife as retribution for the parents talking to media. That, too, is common.

The DV diversion

Judge Green approved the removal because the mother dared to disagree with the doctor and also because of a supposed “history of domestic violence.” 

Even when there really is domestic violence, removing the children from the non-offending parent is even more traumatic for the child than removing that child in other circumstances.  One expert calls it “tantamount to pouring salt into an open wound.”   There is what should be an obvious alternative: Remove the abuser. But Arizona, even more than most states, takes an approach to these situations best summed up as “please pass the salt.” The Arizona Court of Appeals had a lot to say about this, too.

But in this case, the Republic reports that, in claiming this alleged history the example the judge cited was domestic violence only if the father were living with a wall of his house. The judge specified “an incident in which the father punched a wall.”

Sometimes even the calmest of people will do that – even high-ranking news executives such as Dean Baquet, now the Executive Editor of The New York Times.  Baquet’s blow to an office wall is well-known, but I’ll bet if he’d had young children at the time, child protective services would never have taken them away.

Thwarting extended family

When children can’t stay in their own homes  study after  study has shown that kinship foster care – placement with a relative – is better for children’s well-being and safer than what should properly be called stranger care.

With that in mind, the children’s “law guardian” – a lawyer tasked with recommending whatever s/he happens to think is best for the children – pressed the court to order that the children be placed with grandparents.  Again, from the Republic story:

The judge asked what was delaying placing three children with their grandparents. The state's attorney said the grandparents still needed a home-safety check. 
[Judge] Green asked if that check could be expedited. The state's attorney said DCS contracts with a company to conduct safety reviews and has no control over timelines but that it could take up to 30 days.

The judge didn’t buy it. She demanded the state get it done in four days – in this one highly-publicized case.  But what this tells us is that Arizona routinely worsens the emotional trauma for hundreds, perhaps thousands of children by delaying kinship care placement for up to 30 days, because it suits the convenience of DCS and its contractor.

It is a classic example of a problem Prof. Vivek Sankaran of the University of Michigan Law School wrote about last month: how the system loses sight of the fact that it is dealing with flesh-and-blood human beings, subordinating their needs to bureaucratic convenience.

That subordination of these three Arizona children’s needs continues.  As noted earlier, the judge also approved the demand for the “psych evals.”  But again, because bureaucratic convenience comes first, it takes months to get such an evaluation.  That means months before the children are returned to the parents from whom they never should have been taken in the first place.

Meanwhile, in Maricopa City…

I often point out that all the time, money and effort wasted tearing apart innocent families is, in effect, stolen from finding children in real danger.  Workers overloaded with false allegations, trivial cases and cases in which family poverty is confused with neglect have no time to investigate any case carefully – less time to, say, go to the door of a home themselves, knock politely and engage a family instead of immediately calling the cops.

That’s why the SWAT team approach (literally or figuratively) makes all children less safe. But rarely is there so stark an example as in Arizona.

Even as the police were sitting in their cars getting ready to break down the door in Chandler, less than 30 miles away, in the City of Maricopa, seven adopted children allegedly were being imprisoned and horribly abused by their adoptive mother, Machelle Hobson – for failing to perform to her satisfaction in YouTube videos.

Hobson allegedly pepper-sprayed the children, sometimes on their genitals, but not before putting on a mask to protect herself, one of the children said. 
She also locked them in a closet, which one child called "the green screen room," for days without food, water, or a bathroom, and forced them to take ice baths, in addition to a slew of other abuses the children recounted to police.

New Times reports that DCS had received nine reports alleging abuse in the home.  They rescued the children in mid-March, after the tenth allegation.  And, of course, DCS had approved the mother for adoption – seven times.  Each such approval brought with it the potential of a bounty paid by the federal government to DCS ranging from $5,000 to $12,000 – another incentive not to look too closely.  (Now that the children have been removed from the home, the state still gets to keep any bounties it may have received.)

All this helps explain why DCS was so much less interested in the children in Maricopa City than they were in the children in Chandler.  When the alleged abuse is in a foster or adoptive home the agency is, in effect, investigating itself, creating an extra incentive to see no evil, hear no evil, speak no evil and write no evil in the case file.

A victory for the anti-vaxxers

No I haven’t forgotten about the vaccines.  The toddler in the family from Chandler had not been vaccinated.  That may have made the doctor’s original concern more understandable.  But that doesn’t change the fact that no one has contradicted the parents’ account that the fever was down well before the police broke down the door.

The anti-vaccination movement is pernicious. It is a threat to the health not only to those who are not vaccinated but to children around them, as recent outbreaks of measles make clear. But – unfortunately, in my view -- Arizona has extremely liberal laws allowing parents to leave their children unvaccinated.  To the extent, if any, that this was a factor in this case, the solution is to change those laws, not break down the doors of the homes where children have not had vaccines.

Indeed, given the extent to which the anti-vaccine movement is fueled, in some quarters, by paranoia, it’s hard to imagine a greater gift to anti-vax crusaders than a video of police breaking down the door to get their hands on an unvaccinated child.  (And sure enough, The Washington Post reports, conspiracy theories are already circulating online.)

What are parents who have made the decision not to vaccinate their children likely to conclude from all this?  Will they think: Gee, I guess I’d better get my child vaccinated after all? Or will they think: I’d better just hope this fever breaks, because I can’t risk taking my child to the doctor – if I do, they might suffer lifelong trauma at the hands of those charged with protecting them?  For that matter, now even some parents who have vaccinated their children may hesitate when their child has a high fever.

So congratulations Arizona Department of Child Safety – you screwed this one up in every possible way. Worse, we now know you’re screwing up a whole lot of cases that don’t involve SWAT teams, too.