Wednesday, June 4, 2008

The “Dirty Harry” of child welfare?

Suppose a police department got caught routinely refusing to read suspects their "Miranda" rights. Suppose the department coerced confessions from suspects and, in various other ways, broke the law. Suppose that most of the time they never got caught because the accused had lawyers who never really fought for them, and just negotiated plea bargains. But then, suppose, a couple of lawyers finally took the cases to higher courts – which threw out the convictions because of the illegal behavior of the cops.

Now, suppose the police chief reacted as follows: "We don't have to actually follow the law ourselves because, you see, we're the cops, and our only job is to do whatever it takes to catch anyone we think is a crook. The courts, on the other hand, don't care only about protecting innocent citizens from crime, they also have a mandate to coddle criminals. So we cops don't actually have to make a good faith effort to follow the law on our own – we only have to do it when the court makes us."

Frankly, a fair number of Americans might go for this – after all, fictional cops like Dirty Harry are very popular. But at least a sizable minority would be appalled – and certainly most who call themselves civil libertarians would be outraged. Indeed, few police chiefs who held this view would say it out loud.

But, as always, it's depressingly different in child welfare. One of the sleazier arguments made by Texas CPS in the YFZ case, ever since the appellate court ruled against the agency, is the one where they imply that the courts ruled against CPS because only CPS really, truly cares about children, while the courts have "other concerns." That was bad enough, with its implication that somehow, traumatizing hundreds of little children and placing them at enormous risk in Texas foster care was some kind of defense of child safety and if you disagree you must care more about "parents rights."

But Albert Hawkins, executive commissioner of the Texas Health and Human Services Commission, which oversees the Texas child welfare agency, has now taken this argument a step further. Responding to still another editorial condemning the YFZ raid, this one in USA Today, Hawkins wrote this:

While Child Protective Services remains strictly focused on the protection of children, the courts have a different role. It's in the courts that the safety of children must be weighed against the rights of parents [emphasis added].

Leaving aside the nasty bit of deck stacking where Hawkins equates things like minimal due process and having minimal evidence before traumatizing hundreds of children as somehow equivalent to protecting "parents rights," just consider the implications of his comments that there is, essentially no constraint on CPS doing whatever it pleases until the case gets to court. That is, of course, especially frightening since, in most cases, the courts offer no check or balance at all.

Kind of makes you wonder if, when higher-ups at CPS first heard that the families actually would appeal their response was "Go ahead – make my day."


There are alarming signs that, in Texas, a lot of people are going to learn only the wrong lessons from all this. First, of course, are all those editorials claiming the criticism of CPS is "hindsight" and "second guessing." But there are plenty of us who said this was wrong from the start, including the Parent Guidance Center and the excellent Texas criminal justice blog Grits for Breakfast.

More important, in an otherwise excellent editorial, the San Antonio Express News, which usually covers child welfare better than any other paper in Texas, made a crucial mistake. To the paper's credit, they refused to fall for Hawkins' line about how not removing children harms only the parents. On the contrary, the editorial explicitly recognized that the wrong decision either way harms children. But then, alas, came this:

The state, reflecting the spirit of the law, normally exercises extraordinary care in removing even a single child from parental custody. In this case, the state removed children from an entire community on the flimsiest of evidence — phone calls alleged to have come from one girl who claimed to be an abuse victim. Authorities now believe a woman in Colorado fraudulently placed those calls.

Everything after that first sentence is on the mark. But, in fact, the state rarely exercises extraordinary care in these cases. On the contrary, the decisions often are arbitrary, capricious and cruel. It is commonplace for child welfare agencies to take children needlessly and to leave children in dangerous homes. If the Express-News, and others don't get that the decision-making in this case was tragically typical, all of the suffering endured by the YFZ children will be for nothing.


Let's not forget the April 24 commentary in the Houston Chronicle by Jim Shields of Justice for Children, which began as follows:

I spend my days fighting to save the lives of victims of child abuse, so I have a unique perspective on the turmoil of the past few weeks at the Fundamentalist Latter Day Saints compound near the West Texas town of Eldorado. … I think that we all need to take a deep breath and allow "the system" to do its work. And I am very hopeful that the children of Eldorado will be well served this time because it is my experience that "what's watched, works." In other words, the cracks, or gaping chasms if you prefer, in our child protective systems will be closed because the whole world is watching.

Recognizing that I am, of course, unworthy even to read the words of a man who "[spends his] days fighting to save the lives of victims of child abuse…" I nevertheless feel compelled to point out that the eyewitness accounts of the mental health professionals sent in by Texas itself show that what was watched didn't work at all.

And it is frightening to contemplate what would have happened had the courts ruled the other way. Texas CPS assured us they would have no trouble handling more than 400 additional children. But early on news accounts began appearing about the enormous suffering being endured – not by the children, but by the CPS caseworkers, who couldn't get paid for overtime or even reimbursed for what they spent on gas as they traveled around the state following the children they themselves had placed all over the state.

If Texas CPS couldn't even manage to process a few extra forms, imagine how they would have handled things like ensuring visits between parents and children and making sure the children were not abused in foster care.


Though by far the most important tragedy is the harm to children's lives, has a very good story about all the money Texas taxpayers have squandered on the case so far. (It's written by Ashley Broughton, a very good reporter who, some years ago, covered child welfare for The Salt Lake Tribune). This story puts the state cost at $7 million. Other stories have covered this ground, and offered different estimates, but in this piece Broughton gave some examples of how that money could have been spent instead:

For comparison, $7 million would pay for 137 police officers in the city of Mesquite, Texas, at a salary of $51,060, according to a figure from a job posting. It would also pay for 180 new teachers at the average statewide salary of $38,857 given by the Texas State Board for Educator Certification and would more than double resources available for a state program aimed at children of incarcerated parents, according to the state's budget for fiscal 2008-09. In that budget, the program receives $5 million.

Allow me to add a few other examples: $7 million could have put 1,400 families through Intensive Family Preservation Services intervention at $5,000 per family. These programs have a far better track record for safety than foster care. (They're discussed in detail in NCCPR Issue Papers 10 and 11). This money also could have provided $600-a-month rent subsidies for a year for 972 families, so their children would not be taken away because of housing problems. They could have provided $100-a-week in day care assistance for 1,346 children, so those children wouldn't be taken away on "lack of supervision" charges. And they could have put 378 parents through inpatient residential drug treatment programs (at $18,500 per parent) where their children could have remained with them – again, something far better for children than being thrown into foster care.

Of course, not all the $7 million was wasted. It made sense to investigate carefully and make case-by-case determinations concerning whether any children were abused or at imminent risk of abuse. So spending money to investigate was reasonable. Of course, given how the investigation was conducted, it could be argued that this money was wasted as well.


The USA Today editorial was the 12th I've found outside Texas and Utah to tell CPS it screwed up. Three more, The Baltimore Sun, the Toledo Blade and The Day in New London, Connecticut, are on the fence. And I finally found a newspaper that favors the CPS position: the Croydon, (Indiana) Democrat.