One of the saddest, cruelest parts of the mass round-up of women and children from the FLDS ranch in Texas has been the imposition of a de-facto confiscation-at-birth policy. Some of the women taken away were pregnant, and when two of them gave birth, the state immediately tried to take away the children as well.
Separating a child from a parent always risks traumatizing a child. But there may be no time when the risk is greater than during a child's first days of life, a crucial infant-parent bonding period. This can be seen in a landmark University of Florida Medical Center study I've cited often on this blog and elsewhere.
The researchers studied two groups of infants born with cocaine in their systems. One group was placed in foster care, the other with birth mothers able to care for them. After six months, the babies were tested using all the usual measures of infant development: rolling over, sitting up, reaching out. Consistently, the children placed with their birth mothers did better. For the foster children, being taken from their mothers was more toxic than the cocaine.
That doesn't mean children can simply be left with mothers who have drug problems. It does mean that helping the mother is almost always a better first choice than foster care for the child.
But now, New York City's Administration for Children's Services has adopted what amounts to a Texas-style confiscation-at-birth policy.
Under the new policy, it is a virtual certainly that if a mother has other children in foster care when she gives birth, the newborn is going straight into foster care as well. As far as I can tell, the policy is not yet on the ACS website, so I can't provide a link. But I have a copy of it, and many excellent New York City-based advocates have copies as well. The policy doesn't quite make confiscation-at-birth automatic – but it comes within a hair's breadth.
The guidelines are so draconian that the message to caseworkers is clear: "Go ahead and let this child come home if you want, but if anything goes wrong, your career is over." Even the rare caseworker ready to put her career on the line won't have time for all the extra work that would be imposed on her. And even if she could take on the work, her decision would have to be approved all the way up to the level of Borough Commissioner.
The decision was, of course, beloved by the neocons, still quite powerful in New York City political and media circles, even though neocons have been about as good for the children of New York as they have for the children of Baghdad.
"All common sense would say a parent should not be able to bring an infant home from the hospital if caseworkers have previously removed older children from the household," declares an editorial in the New York Daily News.
But there is a difference between "common sense" and conventional wisdom built on horror stories and stereotypes. Of course there are some cases where removal under these circumstances is the obvious choice. But common sense says: Look at each family individually, with no preconceptions.
It's easy to come up with scenarios where confiscation-at-birth would be a huge mistake. For instance:
--A 14-year-old girl mouths off to her mother, who is eight-months-pregnant, launching a furious tirade filled with words that could never be printed in The New York Times or even the Daily News. Dad slaps the daughter in the face. Daughter calls ACS which takes her away. Dad's never done anything like that before and feels terrible about it. One month later, Mom gives birth to a healthy baby. Even if one thinks the daughter should be in foster care, there is nothing in a scenario like that to suggest that the baby would be in danger.
--A child is taken from her mother because of substance abuse. The child is placed with grandma. Mom is now clean - and pregnant. Mom can visit when she wants and visits often. But the child has gotten used to living with grandma and doesn't want to go home. Everyone, including mom, thinks leaving things as they are is best for the child. But it doesn't follow that there is any reason to presume that the new baby should be taken as well.
Other advocates cite situations such as a child placed in foster care not because of parental behavior but because of so-called "status offenses" which might lead to the child being labeled a "person in need of supervision" or a case where the children now in foster care are on the verge of being returned home. Why traumatize a newborn in cases like these?
There also is considerable question about whether the new policy is legal in New York State. New York's highest court, the Court of Appeals, made clear its displeasure with blanket policies when it ruled in favor of plaintiffs in a successful effort to stop ACS from confiscating children of battered mothers solely because the mothers had been beaten. The judges wrote:
The plain language of the section and the legislative history supporting it establish that a blanket presumption favoring removal was never intended. The court must do more than identify the existence of a risk of serious harm. Rather, a court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. It must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interests.
What makes ACS's new policy even worse is that it is part of a disturbing pattern of incentives to frontline workers that has emerged ever since Nixzmary Brown died in January, 2006. Over and over, the message from the top has been: If you want to keep your job, take the child and run.
When a reporter for The New York Times first contacted me about this, the first thing I said was: "Since it's a lousy policy and ACS has to know that, I'm curious: What horror story case prompted it?" Sure enough, the policy comes after lots of media attention to a case in which a mother allegedly killed an infant she was allowed to keep even though an older sibling was in foster care.
But perhaps most disappointing was this comment from ACS Commissioner John Mattingly in the Times story: "…if older siblings are in foster care, and the court has affirmed that they are at substantial risk of harm, it makes very little sense to make the opposite assumption about a 6-pound baby coming into the home."
First of all, Mattingly is setting up a straw man. He suggests that the only alternative to assuming the child is in danger is assuming he isn't. There's a third option: Investigating carefully with an open mind and no assumptions either way. The status of the siblings should be treated as one risk factor, along with any others that may be present, balanced by any strengths the family may show.
But what I find particularly disappointing is this quote was the part about "…the court has affirmed…" For starters, it is quite possible for a child to be in foster care for weeks or months, based solely on the judge rubber-stamping the initial removal, without a court in fact ever deciding there really was maltreatment – the Texas cases are prominent examples.
But more important, all over the country child welfare agency chiefs routinely hide behind judges' robes – and when they do, the person I cite to rebut the claim is: John Mattingly. Because it was John Mattingly who co-authored a scathing report in 2000 blasting New York City Family Court judges for routinely rubber-stamping ACS removal requests even when the judges themselves thought the agency lacked enough evidence.
But the Times obliged ACS as it always does when the agency moves to take away more children. The Times story omitted all comment about how the new policy harms children and portrayed the issue solely as abstract concerns over civil liberties versus keeping innocent children alive.
Thus, the story ends with a comment from one of the huge private agencies that dominate foster care in New York City and live off a steady supply of foster children:
Bill Baccaglini, executive director of New York Foundling, one of several dozen foster-care agencies that will help administer the new policy, said he was "willing to be the subject of a little criticism from the civil libertarians."
"This comes out of the best of intentions," he said. "Being on this side of the business I know if we make a mistake you could lose a life."
In one sense, he's right. ACS has been making precisely this kind of mistake for nearly two-and-a-half -years now, engaging in policy-by-horror-story, issuing one draconian policy or pronouncement after another. The number of children taken from their parents over the course of a year is up by 44 percent since the last fiscal year before Nixzmary Brown died. And deaths of children "known to the system" are up sharply – something the Times keeps forgetting to put in its stories.
Other, more reliable indicators of child safety also have worsened. For details, see the table on Page 20 of our updated report on New York City child welfare, Don't Turn Back (which I'm beginning to think should be retitled Stop Turning Back). It's hard to imagine that ACS really believes one more "get tough" policy is going to reverse this trend.
UPDATE, MAY 19: Today's New York Post has a story which perfectly illustrates other problems with anything like a blanket "confiscation at birth" policy. One case involves children abused in foster care after being placed voluntarily. And let's just hope the mother whose case is discussed in the lead doesn't happen to be pregnant right now.