Thursday, December 31, 2009

Applying the Goldman standard to foster care


I suspect most people are familiar by now with the story of nine-year-old Sean Goldman, the boy from New Jersey abducted by his Brazilian mother. She claimed to be taking him to Brazil for a visit, but once she got there she filed for divorce from her American husband, David Goldman. Later, she married a powerful, well-connected lawyer. Even after the mother died, her relatives refused to return the child to his father. The court battle dragged on for five years, finally ending with the boy's return to his father earlier this month. During most of that time, David Goldman could not even visit his son.

It was plainly an abduction, in violation of international law. Goldman garnered enormous public sympathy, and rightly so. T he Facebook page set up by Goldman's friends has 61,000 members.

His Congressman lobbied for him and Secretary of State Hillary Clinton intervened on his behalf.

But what was truly remarkable is what wasn't said. I saw nobody in American media play the bonding card. Nobody said: "Well, yes, the mother was wrong to abduct the child, but, after all, this is the only family he's known for all these years – they've bonded. What about the best interests of the child?"

Sean's Brazilian relatives said it, of course, (and they tried to spin the case as a "custody dispute" not an abduction). But this time it didn't play in America. Partly that's just a matter of American nationalism. That can be seen in how the entire legislature of the State of Nebraska behaved in a strikingly similar case in which the obstructionists are Americans, and the parent who lost the child is Canadian.

But mostly, David Goldman had the support of public opinion, the support he - and, I would argue, his son - deserved, because you can't play the bonding card against a white, middle class parent. In America, this argument is reserved for cases in which the parent who lost custody is a birth parent who is poor and/or minority and the parent who has the child is affluent and/or white.

The best-known such cases involve private disputes between birth parents and adoptive parents, such as the notorious "Baby Jessica" case in Iowa and Michigan nearly 20 years ago.

The baby's real name was Anna. Her birth mother's signature wound up on a surrender agreement less than two days after the birth – that's illegal in Iowa; there's supposed to be a three-day waiting period.

Just five days after Anna was placed, her mother changed her mind and asked for her back. The father came forward, took responsibility, and married the mother. Had the adoptive parents really been thinking of the "best interests of the child" they could simply have returned her then and there. Instead they changed her name and went to court. They lost time and time again. But each time they would find a way to stall; a new motion, a new appeal. And then, after two-and-a-half years, when all the appeals finally ran out, they turned around and played the bonding card: You can't take this child from us, they said. We're the only parents she's ever known!

Though they lost in court, the media almost universally sided with the adoptive parents. So did many co-called child advocates. In a similar case involving foster parents in Arkansas, who wanted to keep a child who had been with them for two-and-a-half years (apparently over the objection of both the birth parents and the child welfare agency), the foster parents were represented by a young "children's rights" attorney named Hillary Clinton. She won.

As the Arkansas case illustrates, this doesn't happen only in private disputes. Sometimes it's not only the child protective services agency that takes the child, but also the CPS agency that, years later, is either proven wrong or may even admit it was wrong, but argues that: "It's too late now, the child has 'bonded' with the foster parents."

And what's wrong with that? Why shouldn't we stand up for "children's rights" and let all children stay wherever they are said to have 'bonded', no matter how they got there?

For starters, knowing what really is in any given child's best interests is a lot more difficult than those who throw around the phrase so cavalierly would have us believe. The last time the media checked up on Anna, for example, she was 12, and doing just fine with her birth parents.

But also, the vision of "children's rights" advocated by backers of Baby Jessica's adoptive parents – and by Hillary Clinton in her Arkansas case - is way too narrow. It would only further encourage both child welfare agencies, and childless couples with good lawyers, to turn child welfare systems into the ultimate middle-class entitlement: Step right up and take a poor person's child for your very own. They'd know that if all else failed, they could just stall long enough to play the bonding card. And it ignores the right of all children to live in a just society – where they will not grow up to fall prey to anyone who is rich enough and powerful enough and wants their child.

Indeed, by the logic of those who play the bonding card in these situations, if someone kidnaps a child at birth, flees to Mexico, takes good care of the child and then comes back two years later, the kidnapper should be allowed to keep the child.

That's why what might best be called the Goldman standard, also known as the rule of law, should be the standard whenever a child welfare agency says: "Well, yes, we were wrong, but now the child has 'bonded' with the substitute parents we always liked better in the first place." And that's why I hope Americans remember how they responded to the Goldman case, the next time a "Baby Jessica"-type case hits the headlines.

Monday, December 28, 2009

Foster care: More questions about CASA, and the newspaper that didn’t ask them

I've gotten used to the fact that stories about the Court-Appointed Special Advocates program (CASA) almost always are puff pieces, in which reporters almost never check the organization's record.

What record?

The fact that the most comprehensive study ever done of the program, commissioned by the National CASA Association itself, found that the program's only real accomplishments are to prolong foster care and reduce the chance that children will be placed with relatives instead of strangers; with no improvement in child safety. (Details, and a link to the study, are in this previous Blog post.)

I've gotten used to the fact that such stories, like this one in the San Antonio Express News, never ask if having well-meaning, but overwhelmingly white, middle-class people barge into the lives of overwhelmingly poor, disproportionately minority families to pass judgment upon them might raise issues of racial and class bias.

Instead, in the Express News story, one of those middle-class (and, in this case, childless) volunteers is allowed to sneer at those she judges, branding them "a whole subculture of people for whom children are not their first priority." Is "subculture" really just a euphemism for "people who make me uncomfortable because they're a different race or class"?

But here's something I haven't read before: The other CASA profiled in the story, who is supposed to render an objective judgment concerning who can best take care of a child, winds up taking the child for himself.

In fairness, there is nothing to indicate that he suggested this while he was the child's CASA. According to the story it happened sometime afterwards. And, according to the story, it wasn't the CASA's idea. Rather, the idea is said to have come from the child's caseworker.

But still it raises troubling questions – the kinds reporters are supposed to ask. The story says that the child was taken from his birth mother on grounds of "neglect" – which, of course, can mean anything. Then the CASA stepped in. Presumably, he recommended that the child not be returned to his mother. Then, sometime later, when the man no longer was the child's CASA but had continued to maintain a relationship with him, the caseworker urged him to adopt.

So what's the problem? The message it sends to all the other CASAs: If you recommend against returning this child home, someday, he could be yours. Under such circumstances, shouldn't a newspaper at least ask about conflict of interest, instead of simply extolling the case as a model of CASA in action?

Monday, December 21, 2009

Family preservation and foster care: What does, and does NOT curb child abuse deaths


    In Texas there is no one more fanatical about demanding that more children be taken from their parents than Scott McCown, executive director of the Center for Public Policy Priorities. CPPP is a group of my fellow liberals, often described as "advocating on behalf of low-income Texans" (which would be true if the one thing low income Texans crave above all else is to have their children taken away).

    Like most child savers, the term McCown's 19th Century counterparts gave themselves, McCown has the best of intentions. But his advocacy has had a lot to do with two foster care panics in Texas, and the diversion of huge amounts of money (in a very stingy state) that could have been used for prevention and family preservation into more child abuse investigations and more foster care instead.

Of course, McCown was the head cheerleader when Texas CPS took away hundreds of children from the FLDS ranch last year. (For details on McCown's role in Texas child welfare, see these previous Blog posts and take a look at NCCPR's 2005 report on Texas child welfare, (do a word search for McCown). An e-mail exchange I had with him, included as an appendix, is particularly revealing.)

One reason McCown and CPPP have so much influence, even in a conservative state, is that, when it comes to child welfare, McCown is the Godsource for Texas media – that one person or organization quoted in every story and for whom all normal journalistic rules of skepticism and verification are null and void.

So it was quite a shock to see the new report CPPP just issued on child abuse fatalities – the good kind of shock. Because this excellent report, with profound implications for every state, is still more evidence that much of the McCown/CPPP message about child protective services for the past decade has been wrong.

The report deals with what does – and what does not – contribute to what appears to be a relatively high rate of child abuse deaths in Texas. The findings, particularly in the "does not" category, are stunning.

By comparing a series of factors to child abuse death rates among the states, the report concludes:

The rate at which people report child abuse, which is said to be below average in Texas, does not contribute to more child abuse deaths.

The rate at which a state takes children from their parents, which is said to be below average in Texas, does not contribute to more deaths.

The rate at which a state screens in reports for investigation, which is said to be above average in Texas, (and the hot issue in Florida right now) does not contribute to fewer deaths.

In short, none of the traditional investigative and "police" functions of child protective services contribute anything to raising or lowering the rate of child abuse fatalities.

I'll get to what does make a difference in a moment. First, though – why don't the traditional CPS functions make a difference? The CPPP report doesn't say. But it's not that hard to figure out.


The number of children who die of child abuse in Texas is horrifying: 228 in 2007. In fact, even if the number were 1 it would be horrifying, since the only acceptable goal for child abuse fatalities is zero. But there are nearly 6.8 million children in Texas. And of that total, more than 1.5 million are living below the poverty line. That is one gigantic haystack. Why in the world would anyone think that, say, doubling or tripling the number of families investigated or children removed would really help us find more of those 228 needles in time?

So everything we've ever heard from anyone, including CPPP, claiming or implying that hiring more investigators to take more children from more families will save children's lives – is flat wrong. So is every statement from a politician or a CPS agency chief urging us all to report our slightest, most absurd suspicions to a child protective hotline because "you just might save a life." And, of course, so is every Texas news story which starts with a heinous child abuse death and segues immediately to the OSMQ (Obligatory Scott McCown Quote) about the need to take away more children.

Yeah, I know. Some will say: But what about the needles CPS did find, in the sense that the children were "known to the system"? Although the CPPP analysis doesn't mention it, and there are no reliable systematic data, news accounts from around the country suggest that the percentage of child abuse deaths "known to the system" is pretty similar among states as well. So there is no evidence that any of the CPS-related factors contribute to an increase or decrease in those deaths either.

There is one exception: In the very few places large enough to detect a pattern, to the extent that there is any pattern at all, deaths tend to go up in the wake of a foster-care panic, a huge sudden surge in removals of children. And that, too, makes sense. When workers are inundated with a surge in false reports, trivial cases, and needless removals, they have less time to find any child in real danger – so more such cases are missed. When the haystack suddenly grows, it's even harder to find the needles.


So if what CPS does or doesn't do has nothing to do with rates of child abuse fatalities, what does cause the higher rate in Texas?

This is where the CPPP report also is useful in another respect: It provides more evidence that it is impossible to do an accurate comparison of child abuse fatality rates among the states, in other words more evidence that the notorious report from the group calling itself Every Child Matters, which purports to make such a comparison, isn't worth the glossy paper it's printed on.

The CPPP report shows that the allegedly higher rate of such deaths in Texas is due in part to the simple fact that Texas has a broader definition of a child abuse fatality than most states and a more thorough process of child abuse death review than most states.

CPPP goes on to conclude this means other states are undercounting child abuse deaths. It also can mean Texas is overcounting them. For example, as is clear from the experience of Florida, determining when a drowning is an accident and when it is neglect can be highly subjective. But this is CPPP we're talking about; I'm not expecting miracles.

The report also says there are some factors which suggest that at least part of the higher rate in Texas is real. Texas has certain factors which have been shown to contribute to higher rates of child abuse fatalities:

High rates of poverty

High rates of teen pregnancy

Low rates of services to prevent child maltreatment.

Which means, of course, had Texas taken some of the hundreds of millions of dollars it spent to hire more investigators and otherwise make the system bigger and spent it instead on proven prevention programs and help to ameliorate the worst effects of poverty, fewer Texas children might be dead today.

Of course, Scott McCown himself didn't actually write CPPP's report. But I sure hope he reads it.

Thursday, December 17, 2009

Cutting family preservation to fund foster care: Michigan children abandoned again?

    The group that so arrogantly calls itself Children's Rights was doing what it does best last week – promoting itself. They put out a press release and trumpeted the news all over Twitter. The message: Look how wonderful we are. There's a state that's cutting a vitally-important program to keep children out of foster care. But we have a consent decree in that state – so we're marching into court to stop them!

    The state was Connecticut.

    But CR also has a consent decree in Michigan. And under the "leadership" of Michigan Department of Human Services Director Ismael Ahmed, that state is cutting not one but a great many programs with proven track records for safely saving children from the anguish of needless foster care. As noted previously on this Blog, the independent court monitor for the consent decree says the cuts may violate the decree. Yet CR has not gone to court to stop these cuts. They've put out no press release. There hasn't even been a tweet.

    Why the difference?

    Perhaps it has something to do with which children are affected. The cut in Connecticut affected a program to help families who would have had to surrender their children to foster care in order to obtain mental health care for them. This is a huge problem nationwide, brought into stark relief by the Nebraska "safe haven" debacle. The proposed cut in Connecticut is, indeed, despicable. But these kinds of cases also are among the few times the long arm of child protective services reaches into the middle class.

    Or perhaps it has to do with where the money that is being cut is going. In Connecticut, it's just going to close a budget gap. In Michigan, some of the money is going to help fund CR's own settlement – in particular a foster care caseworker hiring binge. It's also going to help fund rate increases for agencies that institutionalize children.

    So perhaps it's just a matter of priorities.   


Sunday, December 13, 2009

From foster care to family preservation: One lawyer’s journey


    The current issue of the Michigan Child Welfare Law Journal from the State Bar of Michigan Children's Law Section is an extraordinary resource; not just for lawyers and not just for people concerned with Michigan. The theme of the issue is aptly summed up by the quote above.

    In one article, originally published in Rise, the outstanding magazine written by parents who've been caught up in child welfare systems, a mother talks about how her children's lives were nearly destroyed by CPS, all because the mother was, herself, beaten by the children's father. CPS decided she was a bad mother because she "allowed" the children to see her being beaten. (Thanks to a class-action lawsuit settlement (for which NCCPR's Vice President was co-counsel for plaintiffs) this is illegal in New York City, but entirely permissible in Michigan and elsewhere, even though the harm of removal for children actually is greater when they are taken from battered mothers. Although the group that so arrogantly calls itself Children's Rights settled a lawsuit in Michigan, this issue, of course, is not covered.)

One reason the mother suspects for her family's ill-treatment: "There had recently been a few deaths related to domestic violence. I think the [CPS] worker feared that my husband would hurt me and didn't want her name on the 5 o'clock news.

    The story also illustrates how, without safeguards, Team Decisionmaking (and similar practices with similar names, such as Family Group Decision Making and Family Group Conferencing) can be abused, and become just another way to bully families.

    In another article, a juvenile court judge describes how he learned that running his court like an old boys club, in which everything is done informally, "off the record," is no way to achieve justice.

    But perhaps the most remarkable article is from Tracy Green, Managing Attorney for the Detroit Center for Family Advocacy. Green describes her personal journey from social worker overseeing foster care cases, to lawyer guardian ad litem (L-GAL) a lawyer who advocates for what she thinks is best for a child regardless of whether it's what the child wants (in effect, a CASA with a law degree) to a lawyer representing parents. Below, some excerpts from Ms. Green's story. (In all cases, emphasis is in the original.)


It was during my time working in foster care that my commitment to family preservation began; when I observed first-hand the ravages of poverty and social inequality that often characterize large urban communities. I was an eye-witness to the destruction of so many families involved in an unfair child welfare system, and this was a lesson for me in gratitude. If I had nothing else, I knew that I had my family -- my child. I could not imagine what it was like for parents to be without their children, and for those children to be without their parents. "What could be more devastating," I thought, "than losing your family?"

As a foster care case manager, it was my job, among other things, to monitor the well-being of the children on my caseload during their stay in foster care. The evidence of psychological, emotional and social damage suffered by the majority of these children as a consequence of being away from their families was pronounced (even from a lay person's perspective), and it was irrefutable. …

Unlike the children … who had many professionals and interested parties (parents, jurists, L-GALs, case managers, court appointed special advocates, foster parents, and the like) whose job it

was to advocate for them, the parents had only their attorney to speak for them. And unlike the children, the parents were judged so harshly and treated like criminals. They were publically derided and dismissed, often by their own attorneys.

Still, the vast majority of these parents, being poor and undereducated, were not bad people at all. They were merely confronted with seemingly insurmountable challenges, the likes of which most of the privileged professionals – those who were making crucial decisions about these parents' families – had never imagined. The parents were people whose reality of everyday life was in stark contrast to that experienced by everyone else in the system who stood in judgment of them – the jurists, lawyers and caseworkers, courtroom staff members – everyone. They lived their lives with constant instability, fear, anxiety and hopelessness, with little or no resources or coping mechanisms. Nevertheless, what they had in common with everyone else was their love for their children. And their children loved, needed, and wanted desperately to be with them, almost without exception. …


At first, I represented both parents and children as L-GAL. I soon discovered, though, that most of the zealous advocacy in child welfare proceedings was done by the L-GALs, ostensibly on behalf of the children. Nonetheless, the fundamental problem was that this "advocacy" was almost invariably adversarial to the parents.

The L-GALs, although usually well-intending, were rarely objective. They hardly ever advocated for the speedy return of their child clients to their families. In fact, oftentimes, more than the assistant attorney general or prosecuting attorney representing the state petitioners and caseworkers or their agents, these L-GALs served to thwart reunification at every turn of the case. They fought fervently on behalf of maintaining the children in foster care or, worse, for termination of parental rights – even where the parents had addressed the issues that originally brought their children to the attention of the court, and even where no realistic prospect of adoption for the children existed.

The jurists, more often than not, would defer to the L-GAL's arguments and recommendations. All the while, the parents' attorneys sat seemingly impotently or indifferently, not even putting forth an effort to fight for the return of the children to their parents. …

Finally, I arrived at the inescapable conclusion that there is no meaningful child advocacy without parent advocacy. In fact, child advocacy that is in opposition to parents is a myth …if one truly desired to help these foster care children, she needed to represent their parents.


Later in the article, Green writes about one of her cases:

    About seven months ago, after working tirelessly with the mother for the return of her children, the referee recommended (and it was subsequently ordered), over the adamant objection of the L-GAL, that three of the children be returned. Naturally, the mother was overjoyed, and so was I. I knew that it was only a matter of time before all of the children would be returned.

At the next dispositional review hearing, I came to court anticipating a recommendation for more of the children to be returned because the children who were already there were doing very well. And return of more children was, in fact, the recommendation of the caseworkers on the case. When the L-GAL announced that he needed a sidebar before the hearing, however, my heart sunk. "What in the world would be his objection, now?" I thought.

All of the parties' attorneys assembled in the inner hallway, where such sidebar discussions usually occur. I held my breath as the L-GAL, in a clearly self-satisfied manner, identified the following issues in the mother's home as a reason, NOT for the delay of return of additional children, but for the REMOVAL of the ones who had recently been returned home to the mother:

A vacant lot across the street with piles of debris

Chips of mortar missing from the porch of the rental property of the house (to which the mother had recently moved to improve her housing situation)

Reports from neighbors, whom he had interviewed, that gunshots had been heard on the mother's block two days before.

WHAT???!!! I could not believe my ears. I was absolutely disgusted – and angry! I chastised the L-GAL for (among other things) his clear ignorance of the conditions in which poor families, not by choice, live in inner-cities. And, after going on the record, he didn't even dare to raise those same objections (though he predictably managed to find others to raise).

The children were not removed. And I am delighted to report that last month, two more were returned. Now, I actually see hope in the mother's eyes and pride on her frequently smiling face. I am certain that her children see it, too. Reportedly, they are thriving and happy to be home with their mother. …

Now, almost 15 years after my decision to focus on parent advocacy, I am proud that I have played an important role in the restoration of countless families, all through zealous parent representation. The vast majority of my previous clients were reunited with their children, and their children have remained in their care.


Ms. Green says her work is "indescribably rewarding" even though it also can leave her "frustrated and angry (a lot)."

That's as it should be. The people to worry about are those who see what the child welfare system does to children every day and are not angry; those who have become too cynical or too sanguine or too smug to care - if they ever cared at all. Anyone who works in child welfare and doesn't get angry should do the children a favor and get out -- so the job can be done by someone who still gives a damn.

Thursday, December 10, 2009

Foster care, family preservation and civil liberties: When you want to trample on the Fourth Amendment, who ya gonna call?

Say you work for a county sheriff's department and you suspect that a couple is growing marijuana in their home. But you don't have enough evidence to get a search warrant. As Karl Malden used to say in those American Express commercials: What will do you – what will you do?

The dilemma arose in Sarasota County, Florida. And Sheriff's deputies there came up with what they thought was the perfect answer: Pretend they were from the one government agency to which that pesky Fourth Amendment never seems to apply. Pretend to be from the agency that can enter any home based on no more than an anonymous telephone tip. Pretend to be from an agency so powerful that, even if technically, people have the right to refuse, they'd be too terrified to invoke it.

Yes, that's right. The deputies pretended to be from child protective services, in this case, the Florida Department of Children and Families, and they pretended to be looking not for pot, but for child abuse.

According to the Sarasota Herald Tribune, the deputies told the couple they were investigating an anonymous tip about a child living in unfit conditions – and, they said, the couple had no right to refuse them entry.

It was all a lie, but once inside they found enough evidence to get a warrant, ultimately they found marijuana plants and drug paraphernalia. A circuit judge has ruled that illegal – and thrown out the tainted evidence. Because, after all, adults have Fourth Amendment rights.

But not children. Laws and court decisions vary from state to state, but as a practical matter, even if, technically, a parent can refuse entry to a child protective services worker, as a practical matter she'll just run to court, claim that the refusal itself puts the child in imminent danger and get the court not only to let her in, but also to take away the children. (Indeed, she may not even need to go to court – she could simply exercise her "emergency" power to declare the child endangered, call the cops to let her in, and then leave with the child.)

In Florida, state law instructs caseworkers to simply run to court (or seek "other legal authority," whatever that is) whenever a family won't let them in. Judges are practically invited to rubber-stamp those requests. There is no requirement to show "probable cause" as there would be if, say, police wanted to search a home in connection with the murder of a child by a stranger. Nothing more than the existence of the investigation itself is required to force children to endure traumatic investigations, stripsearches as investigators or medical personnel look for bruises, and, quite possibly, removal from everyone they know and love.

At least one Florida judge has made clear that he will gladly order children subjected to any or all of this based on nothing more than a caseworker's say-so. Indeed, the judge, James Seals, did just that, in a case where the trauma inflicted on the children by his decision probably was exceptionally severe.

The case involved the family of six-year-old Coralrose Fullwood, who was raped and murdered. After the murder, Coralrose's parents and siblings moved into the home of grandparents. The parents were suspects at the time (someone else ultimately was charged). But instead of removing the parents from that home, DCF removed the children – without even giving them a chance to say goodbye. At precisely the time they needed the comfort of family most, while grieving for their sister, it was torn from them.

The grandfather understood that. A former police officer himself, he called his lawyer, who told him he didn't have to let the DCF workers in without a court order.

So they ran to Seals, who promptly obliged – and made clear his view that DCF always is entitled to enter a home based on no more than the fact that someone called the state hotline and the hotline passed on the case for investigation.

Seals even sent an e-mail to 12 people who serve with him on a "court-media committee." In the e-mail he is critical of the grandparents – but he asked the recipients, including the journalists, to keep secret the fact that he was speaking out on a case he'd heard – and criticizing one of the parties.

The largest paper in the region, the Fort Myers News-Press obliged; indeed, the News-Press even parroted Seals' view as its own in an editorial. Fortunately the Charlotte Sun, which apparently was not on the original distribution list, was not inclined to let Seals criticize the grandparents while hiding behind anonymity.

The Sun reported that in the e-mail Judge Seals explained that the law requires DCF to investigate any complaint forwarded by the hotline, and to see the child. "DCF does not have to present the judge with evidence that the children were actually being harmed," Seals wrote. "The only showing required was that they were denied access to the children."

    So, if someone phones in an anonymous, off-the-wall complaint to the hotline and the hotline passes it on, according to Judge Seals, DCF need not have probable cause – or any real cause – to enter the home. Fourth Amendment? What Fourth Amendment?

No wonder those Sheriff's deputies were envious. They can't go to court and say "Your honor, we don't actually have a shred of evidence these people are growing pot in their house, but give us a warrant anyway." They couldn't even do that in search of a child murderer.

Fortunately, in the case of Coralrose Fullwood's siblings, a day after they were removed a wiser judge in another county ordered them returned to their grandparents – and ordered the parents removed instead.

The Florida Department of Children and Families is a wiser, more restrained agency than it was in 2006 but self-restraint is no substitute for due process.

This latest case in Sarasota really is one more reminder that every state needs a law barring the child welfare agency from entering a home without a warrant (or the same "exigent circumstances" exceptions as apply in a criminal case) and a clause specifying that judges may not use denial of entry to a child protective services worker as grounds to order the removal of a child, and may not use the mere existence of an investigation as grounds to force a family to allow a CPS worker in.

I'm sure my fellow liberals will cheer the decision to throw out the tainted evidence in the marijuana case. If only they were equally willing to realize that "children's rights" should include the right to be free from unreasonable search and seizure.

Tuesday, December 8, 2009

UPDATED DEC. 9: Child abuse hotline pop quiz: Is this advice too dangerous to follow?

    The Florida child abuse hotline has a policy: Any time the hotline receives more than one a report alleging "unexplained" injuries to a child under five (presumably no matter how minor the "injuries") the report should be accepted for investigation. That got me to thinking about some advice I read more than 20 years ago. It goes like this:

"If a child is so carefully watched that she never has an accident, she is being fussed over too much. Bones may be saved, but her character will be ruined." [Emphasis in original.]

The problem is, taking that advice could set you up to be called in to your state's child abuse hotline. And, if it happens more than once, and you happen to live in Florida…

Of course some would wonder about the guy who gave that advice. Who would be so tolerant of what many might consider, at a minimum, neglect? Would you turn him in to the hotline?

Come back tomorrow, and I'll tell you who said it.

UPDATE, DECEMBER 9: The quote above is from Doctor Spock.  (Baby and Child Care (New York: Pocket Books, 1985) p.640.

Monday, December 7, 2009

Foster care in Florida: Error after error in the story that started hotline hysteria

    Previous posts to this blog discuss an editorial-disguised-as-a-news-story in the Miami Herald on Nov. 29 that essentially crusaded for drastically reducing, if not eliminating, the practice of screening calls to Florida's child abuse hotline. The de facto editorial was a collection of apparent horror stories about cases which the hotline allegedly should have accepted for investigation instead of screening out. In fact, a rebuttal from the Florida Department of Children and Families "raises questions," as newspapers like to put it, about the Herald's account of those cases.

Not just the accounts of these individual cases, but the entire story was devoid of context.

There was only a passing mention, far down in the story, of the fact that Florida screens calls at roughly the national average rate, and no mention at all of the fact that, when screening was nearly eliminated in 2000, the results were disastrous.

The Herald account blamed the alleged horror stories on policy when, in fact, to the extent that there were failures, those failures appear to be errors in implementing policy.

● The story also was a no-dissent zone – anyone who disagreed with the story's thesis was shut out, unless they worked for DCF – which inherently gave them less credibility.

    But we do have detail about one of the horror stories – because it was the subject of an earlier account in the Herald. More important, the Herald posted on its website some of the key documents in that particular case. They're still there. That allows anyone to do what Herald editors should have done – not only a fact check, but a nuance check and an innuendo check as well.

    Below are some excerpts from that story, followed by discussion of what we know from what the documents on which much of the story is based.


    In one sense, in this case the hotline failed by definition – the calls were not accepted, and now the child is dead. But the question is whether the hotline failed without the benefit of hindsight, back when the reports about this case were four of over 200,000 received by the hotline every year.

    By that standard, what the documents reveal is not a failure at the hotline but rather a failure by a judge who apparently believed that, since she's a judge, "because I said so, that's why" is reason enough for the hotline to accept a case. Unfortunately, DCF has given judges reason to believe that. Florida DCF Secretary George Sheldon compounded the problem by doing something one almost never sees among people with his job – being too quick to accept blame for something that was not the agency's fault.

Throughout the story excerpts below, I've bold-faced the loaded language and sneering sarcasm – the parts intended to instruct you as to what to think, instead of giving you the facts to do the thinking for yourself. Here's how the story began:

For six months, Broward Circuit Judge Eileen O'Connor had been struggling to referee Alberto and Jocelyn Barros' nightmare of a marriage.

A former federal prosecutor who presides in the county's specialized Domestic Violence Court, she knew all too well how badly such things can end.

But O'Connor was less worried about the warring adults than their infant son Bryce, whom she feared might well become collateral damage. Three times in February and March, she faxed the state's child-abuse hot line: ``The court is deeply concerned about the welfare of the minor child.''

Child welfare administrators finally accepted the case on July 3. By then, Bryce Barros was dead. He was just shy of 2.

Now, Hallandale Beach police homicide detectives are trying to figure out what child-abuse investigators never tried to, and to determine what, exactly, killed the dark-haired boy.

The Department of Children & Families, too, is looking for answers. Among them: why its hot line counselors repeatedly ignored what amounts to a court order. …

O'Connor first raised a red flag in the form of a handwritten fax to DCF that followed a threat to the warring parents from the bench.

In the case before O'Connor, Jocelyn accused her husband of stalking her, and he had sought a restraining order against her as well. The two were living separately and sharing custody of Bryce.

``Because you two couldn't get along, and are doing ridiculous things with your child, DCF is going to get involved and do an investigation and they are going to figure out whether you're doing an OK job,'' she warned the couple at a Jan. 29 court hearing.

It proved to be an empty threat. DCF investigators rejected the judge's request. ``The fax was screened because there are no allegations of abuse, neglect [or] threatened harm to the child,'' a hot line counselor wrote at the time.

    Now, let's look at what actually happened.

For starters, the story errs in calling Bryce an infant. As this story also says, but the Nov. 29 story does not, he was two-years-old when he died, and that's important in light of some of the allegations in the case. I'll come back to that later. But I'll start with the fax.

    Here is what the fax actually said in its entirety. Under "ordered and adjudged" it says:

    "The clerk of court is directed to refer the above-[word illegible] case to DCF for investigation/home study of both parents. Based on the history between the parties in this case and testimonial evidence presented, the court is deeply concerned about the welfare of the minor child. The court has ordered visitation with both parents in weekly increments and would like a report as to the department's findings."

    What's missing, of course, is any actual accusation of child maltreatment. You don't have to prove abuse to get a call accepted at the hotline. You don't even have to have any evidence. But it's not too much to ask that someone calling the hotline explain what it is they've seen or heard that, if true, would fit a state's definition of abuse and neglect. The judge never does even that much.

    In fact, it does not appear the judge had anything. She just wanted to use DCF to enforce her efforts to get divorcing parents to stop behaving badly. That is not DCF's job.

    And while the story implies that DCF did nothing but throw the judge's fax into a wastebasket, that's not true. When the judge had her "order" faxed the second time, the hotline operator did exactly what common sense says he should do. He got back to the judge's clerk and asked that the judge please send information explaining what she suspected the parents were doing to the child. As the hotline's call center manager explains in an e-mail obtained by the Herald, but not quoted in the story, "Even after calling the reporter back and asking that the allegation be sent, the same fax, without any new details, was re-faxed to us."

But the story never makes that clear. Instead, it says simply:

On March 10, at 11:22 a.m., O'Connor re-faxed the complaint. It was again rejected -- this time because it did not specify where the baby could be found, and because it contained ``no allegations'' of harm to him.

The story never questions why the judge didn't offer any actual reasons for the hotline to investigate. There's no indication that the reporter ever asked. The story continues:
O'Connor sent a third fax 32 minutes later, adding an address. Again, a hot line counselor threw it out on the grounds of ``no allegations,'' and ``insufficient information.''
Were I to write using the same tone as the Herald story I could say that the report was not accepted because O'Connor "couldn't be bothered" or "didn't seem to think the case was important enough" or [insert snide phrase here] to actually offer a reason for suspicion beyond the functional equivalent of: "I'm a judge, that's why!"

One can argue that the hotline operator should have done in response to call #1 what was done with call #2. Other than that, the people at the hotline did exactly what they should have done. They respectfully declined to do the judge's job for her. Without benefit of hindsight, they declined to launch what could have been a traumatic investigation that stole time from some other child in danger based on no allegation of maltreatment whatsoever.


Now we get to where Sheldon was too quick to fall on its sword. At the top of the story, he says:

``The system didn't work in this case,'' DCF Secretary George Sheldon acknowledged. ``There are no excuses for it . . . This is a reminder to everybody that what we do is so critical to the lives of people.''

Later, he gets more specific:

Under DCF policy, O'Connor's third strike should have triggered an automatic review of the case by DCF quality-assurance investigators. The thinking: If anyone is concerned enough to ask three times, maybe it's worth another look.

``Somehow, in this case, that didn't happen,'' Sheldon said. ``There is no question that should have been done.''

If that's really the policy, it shouldn't be. It's like putting up a big sign saying: "Attention: Want to harass an ex-spouse? How about a neighbor against whom you have a grudge? Don't forget our handy 'three strikes' rule!" Cases should be screened based on the merits of the report, not on how often one pushes the 'redial' button on the phone or the 'send' button on the fax machine.

Unfortunately, it also apparently is DCF policy to treat anything from a judge as Holy Writ. Any report from a judge, even it doesn't allege any maltreatment, is supposed to be accepted and sent on to regional offices for investigation. Those offices have the option of going to court to challenge the order – as if that would ever happen. So, to the extent that a hotline operator made a mistake, it was, again to use Herald-speak: treating a complaint from a judge with the same sound response as if it had come from a mere mortal.

Now, back to the story:
On April 21, Jocelyn Barros called the abuse hot line herself. Bryce, she said, ``consistently returns from dad's [visits] with injuries.''
After a recent visit, the infant had a layer of skin peeled from his wrist ``along with deep lacerations,'' she said.

What's more, she said, the boy's father posted a video on YouTube of the baby standing up in a grocery cart, and has posted other videos of him climbing stairs by himself.

Fortunately, the Herald website posted links to the videos. The one involving the grocery cart is available here. I couldn't get back to the other, but I've seen it before, and when Bryce, who was a toddler, not an infant, starts to climb up the stairs by himself, his father goes after him immediately.

There also are links to more than two dozen other videos. I haven't looked at them all; knowing Bryce's fate makes it heartbreaking to view even a few of them. But from what I have seen, if the father ever is charged, were I his defense lawyer, I'd want the jury to see them. I saw nothing suspicious. The Bryce in these videos doesn't match the mother's description, which was another ground for her complaint to DCF: Bryce's eyes, she told the hotline operator, ``don't hold happiness.''

Child maltreatment statutes are very, very broad – but they're not that broad.

As for the injuries, DCF's internal investigation says the report should have been accepted because any time "unexplained" injuries occur more than once to a child under five they should be accepted. In fact, the injury to Bryce's wrist was "larger than a quarter" (not skin peeled from his entire wrist) with "deeper lacerations" that were "scabbed over" within this injury. The previous injuries were scratches. And since we're talking about an active toddler, not an infant, I think it's questionable whether this should be enough for automatic acceptance of a report.

But, as we've seen, DCF actually agrees with the Herald – which certainly belies any claim that screening criteria are too strict. Rather, the hotline operator who took the call did not follow policy.

The story continues:

…the mother's concerns, too, were dismissed -- though, apparently, after some greater consideration.
Laura Johnson, a special projects coordinator, wrote a May 11 e-mail to bosses. Jocelyn Barros had called, discussed her concerns for the baby, and asked why the judge's faxes had all been ignored. ``What is the protocol for this type of [court] order?'' Johnson asked.

``This is a custody issue,'' was one reply.

Actually, the reply said "If this is a custody issue, we would not be doing the home study. There needs to be an open dependency case" [emphasis added].

The story continues:

Caseworkers did not walk away entirely, though. They say they sent Jocelyn Barros a form letter, offering help from food banks, clothing closets, adult day care and Meals on Wheels. And a phone number for a domestic violence shelter. Jocelyn Barros says she never received the letter, and DCF says the agency no longer has a copy of it.

There was no further contact between DCF and the Barroses until July 3. The hot line received one more report: ``When the mom awoke, after putting Bryce to bed, he was not breathing and non-responsive.''


At the time of the original story, the cause of death still was unknown. In the Nov. 29 story, the Herald reports that Bryce was beaten to death. It does not say by whom. The story recaps the case and this time, moves from innuendo to outright factual error:

In July, 1-year-old Bryce Barros was beaten to death after a Broward County domestic violence judge, Eileen O'Connor, sent three faxes to the hot line requesting an investigation into Bryce's safety in the wake of ongoing family violence by his parents.

``The court is deeply concerned about the welfare of the minor child,'' O'Connor wrote in the three faxes she titled ``court orders.'' O'Connor's appeals were ignored.

Error #1: Bryce was two, not one, when he died.

Error #2: As the documents make clear, O'Connor's faxes were not ignored. The hotline tried to get O'Connor to specify what she thought was going on. The judge did not.

The Herald then uses Bryce's story to tee up an irresistible quote which the Herald should have resisted, or at least allowed to be rebutted, since it happens to be inaccurate:

``Hot-line calls are cries for help on behalf of a child,'' said Howard Talenfeld, the Fort Lauderdale-based chairman of Florida's Children First, an advocacy group. ``Any call that is screened out is a cry that falls on deaf ears.''

Any call?
    In fact, as I noted in a previous post: hotline calls can be all sorts of things. Sometimes they are, indeed, cries for help, sometimes they are well-meaning errors, sometimes they are mandated reporters covering their rears, and sometimes they are acts of harassment by vindictive ex-spouses, or neighbors, or anyone else with a grudge. That's why no child welfare system can operate effectively without screening calls to the hotline. Workers would be inundated with false allegations and trivial cases, leaving them no time to find children in real danger. And, of course, huge numbers of additional children would be traumatized by needless investigations and stripsearches.

Try to imagine what would happen to child welfare systems if they accepted every hotline call that alleged absolutely nothing except "I am deeply concerned about the welfare of the child." The systems would collapse. Just as Florida's did when DCF actually tried something similar under disgraced former DCF Secretary Kathleen Kearney.

Why would anyone want to do that again?

If anything, the documents posted on the Herald website in connection with the case of Bryce Barros reveal that errors at the hotline are just that – human errors in implementing policy. To the extent that there is a failure of policy, it is that the policies at the hotline – such as anything goes if it comes from a judge – are too broad, and screening needs to be tightened.

How can I say that when, after the hotline refused to accept the calls and faxes in the case of Bryce Barros, he died?

I say it because people who work at child protective hotlines and caseworkers for child welfare agencies don't have the luxury of reporters and advocates – the luxury of hindsight.

Bryce Barros died and part of the reason may be that these calls and faxes were screened out. But how many other children have died because workers lacked the time to investigate their cases properly – because they were too busy chasing down false reports that were wrongly screened in?

Wednesday, December 2, 2009

UPDATED 10:20 PM: Florida foster care: Horrors! The Miami Herald cries wolf, while DCF takes the road less traveled

UPDATE, 10:20PM: Ah, Florida: where the bureaucrats are candid and the journalists are stonewalling.

The post below deals with a detailed point-by-point rebuttal issued by the Florida Department of Children and Families to a story in Sunday’s Miami HeraldThe Herald has published a follow-up story.   Three general sentences from the DCF rebuttal are included far down in the story.  When it comes to DCF's specifics refuting the Herald’s allegations, there is not one word.

And the Herald repeats misleading claims from the original story.  The follow-up boils down to “it’s our story and we’re sticking to it.”

In a previous post to this Blog, I said that the Miami
Herald relied on innuendo, data out of context and horror stories to stack the deck in what amounted to an editorial-disguised-as-a-news-story calling for screening out fewer calls to the Florida child abuse hotline.

I was wrong.

Turns out, the "horror stories" are out of context, too.

With swiftness and detail almost unheard-of from a child welfare agency, (people in every other state should be demanding the same from theirs) the Florida Department of Children and Families issued a point-by-point rebuttal and an overview from DCF Secretary George Sheldon. I've posted the memos on the NCCPR website.

Whether one agrees with how DCF handled the cases or not, one thing is overwhelmingly clear: The Miami
Herald failed to give readers the information they needed to make up their own minds. In every case, the full story is different from the impression left by the Herald.


Here are two examples:

What the Herald Reported:

Sept. 16,[2009] 2:02 p.m.: A Broward sheriff's deputy calls the Florida child-abuse hot line to report that a 4-year-old had been molested by a babysitter as the sitter's boyfriend videotaped the assault. A hot-line counselor declines to forward the report to an investigator.

What the Herald left out:

The allegation concerned an incident that occurred in 2005. The September 2009 information indicated that neither the babysitter nor the babysitter's boyfriend had any access to the child who was the victim of the molestation. There were actually two children who were the subject of concern. For the child who was the victim of the molestation, the call was taken on 9/16/2009 as a prevention referral to determine if the victim or the victim's family needed services. It was subsequently determined that the child was receiving appropriate therapy [for the molestation in 2005] and was being appropriately cared for after the report was subsequently opened on 10/9/2009.

In the same call on 9/16/2009, it was determined that the babysitter and boyfriend had a child. The concern was that if they had molested one child then their infant could be at risk. This case was properly opened and investigated. It was further determined that law enforcement had an open and ongoing investigation related to the perpetrators in this case.

What the Herald reported:

The hot line rejected a call from one of the agency's own child-abuse investigators: On Oct. 15, a state child protective investigator filed a report on behalf of an infant whose babysitters' own 4-month-old suffered ``significant head injuries.''

What the Herald left out:

Actually, the physical injuries had occurred to the child being babysat, not the babysitter's child. The concern in this case was that a babysitter was potentially involved in a case where a child was injured. Subsequently an investigation was opened to determine if the babysitter's own child was at risk of being harmed. It was determined the babysitter's child was not at risk and the babysitter was not determined to have caused the injury to the 4-month old. The original call regarding the babysitter's child was received at 5:37 p.m. on 10/15/2009 and the report was entered on 10/16 at 3:12 p.m.


More generally, the two rebuttal documents make clear that it is flat wrong to suggest, as the Herald did, that these cases and others cited got no response, or even that they got only a form letter. DCF offers considerable evidence to support Sheldon's claim that "…in every specific case cited in the article, except one where we previously acknowledged error, the cries for help were in fact heeded and the agency did respond. … None of the calls were "turned away," or "rejected" or "unheeded." In addition:

The rebuttal shows that DCF has an effective mechanism to "backstop" calls that become "prevention referrals" instead of full-scale investigations. If DCF workers at the district level disagree with the decision they can have the case "upgraded" to a full-scale investigation. In contrast, DCF workers have no power to "downgrade" a call passed on for investigation to a prevention referral. So if anything the imbalance in the system favors needless investigation.

Twenty-five percent of calls that are not accepted for full –scale investigation become prevention referrals. This means that not only does Florida accept calls for full-scale investigation at a rate that is roughly the national average, (something discussed in detail in a previous post) an additional 25 percent of calls get some kind of response from DCF.

All of the alleged horror stories come from just one county, Broward, where the county sheriff is responsible for child abuse investigations. As the Herald story itself notes, "For budget year 2008, Florida lawmakers reduced funding to the four sheriff's departments, including Broward, that conduct abuse investigations under contract with DCF by $2.9 million, or almost 6 percent. " That gives those departments a profound vested interest in hyping alleged failure to investigate child abuse.

If there's one thing that makes reporters roll their eyes when an agency responds to an unfavorable story it's when the agency says some version of: "we're already looking into that." But in this case, it happens to be true.

A committee whose charge includes reviewing the new hotline procedures and the adequacy of DCF's response to prevention referrals was announced publicly on October 23. Sheldon even included on the committee people likely to support the Herald position – including at least one member of what I have come to call the "Kearney DCF-in-exile" – meaning people I believe prefer something closer to the disastrous take-the-child-and-run approach of former DCF Secretary Kathleen Kearney. (Unfortunately, Sheldon left out the two most important people for any such group: A current or former foster child and a parent who lost her or his children to foster care).


I hope the rebuttal will stop any foster-care panic before it starts. But even if it does, there is another casualty in all this: the credibility of The Miami
Herald, and that hurts everyone who cares about Florida's vulnerable children.

For a decade the Herald led the state in coverage of child welfare. That is largely because of Carol Marbin Miller, the reporter who wrote the hotline story. She is indefatigable, as good at working sources as she is at poring over documents. At one point a competing paper had five reporters trying to keep up with her, and they couldn't. If fewer Florida foster children wind up being doped up on psychiatric medication in the future, the person most responsible will be Carol Marbin Miller (followed, ironically, by the DCF leaders whose work she trashed on Sunday).

But this time, she overreached. She let her righteous indignation get the better of her. This time, and in an earlier hotline story I'll discuss in a future post, the Herald cried wolf.

That hurts everyone. Every government agency needs an aggressive watchdog. But once you cry wolf, it's hard to get the credibility back – readers may even start to mentally "screen out" the newspaper's assertions.

There also is a failing in DCF's rebuttal documents. It is Sheldon's penchant for – believe it or not – taking too much blame. Once again, he says DCF was wrong to screen out reports in the case of Bryce Barros a two-year-old (not one-year-old as the Herald reported) who subsequently died.

Sheldon is mistaken. it's the policy that requires accepting anything sent by a judge, no matter how flimsy, that is wrong. This case was the subject of an earlier Herald story. I plan to discuss the case, and how the Herald stacked the deck in that story too, on this Blog tomorrow or early next week.


Bottom line: Sheldon's responses to the Herald actually show that DCF is not doing enough to screen out false reports and trivial cases. And another paragraph in his overview memorandum also shows there has not yet been enough progress. Sheldon writes:

There may be a misconception that the Department is hesitant to remove children from unsafe homes. That is not the case. In November 2007 we removed 1,148 children. In October 2009, we removed 1,159 children. Our approach does not take abuse less seriously. Our success is in uniting children with a permanent family – their own whenever possible, or with adoptive homes or permanent guardianships if reunification is not possible.

That is worrisome. Though Florida takes away fewer children than it used to – and an independent outside evaluation finds it's been done without compromising safety – the most recent data available for all states, from 2008, shows that the rate of removal in Florida still is above the national average and significantly above the rate in systems that are, relatively speaking, models for keeping children safe. Success is not just giving children back quickly and safely after they've been taken. The bigger success is allowing them to remain safely in their own homes, without ever having their lives disrupted at all.

And DCF still lets governors politicize child welfare, as in the case of Rifqa Bary.

But at least Florida now is moving in the right direction. And that's never easy.

At the end of his letter, Sheldon notes how much still needs to be done, declaring that "we have miles to go before we sleep." The line is, of course, from a poem by Robert Frost. But there's another Frost poem that is at least as appropriate. It's the one that ends:

Two roads diverged in a wood, and I—
I took the one less traveled by,
And that has made all the difference.

For nearly a decade, the Florida Department of Children and Families trod the well-worn path of take-the-child-and-run. It made Florida a national symbol of child welfare failure. Now, DCF is taking the road less traveled. If DCF stays on that road, for the state's vulnerable children, it will make all the difference.

Tuesday, December 1, 2009

Florida foster care: Another error in Sunday’s Miami Herald story

In addition to the errors of interpretation and lack of context in Sunday's Miami Herald story about the Florida child abuse hotline (discussed in detail in the previous post to this Blog), there also is at least one important error of fact. In discussing one of the cases the hotline allegedly wrongly screened out, the story refers to a child who later died as an infant. But that term is defined as a child in the first year of life or a child before the age when she or he can walk. This child's tragic death occurred when he was about two years old and walking. The Herald made the same mistake in an earlier story devoted entirely to this case. (I made a similar error in my post yesterday, referring to the child, incorrectly, as one year old; the post has been corrected.)

The mistake may seem trivial, but actually it is important in judging DCF's handling of the case, as will be clear in what I expect will be the next post to this Blog in a day or two. The post will deal with that particular case and the handling of it by both DCF and the Herald.

In assessing the stories I apply two tests which I apply to all major in-depth reporting that is presented as news coverage rather than opinion.

The first test I learned in J-school. It's on a wallet-size card I've managed not to lose in 33 years, less because of its content than because one of the legends of broadcast journalism, the late Fred Friendly, handed it out to all his students. But every once in awhile it comes in handy. It's a description of what news analysis – that area between straight news and opinion – should be, that goes all the way back to 1939. It's from Ed Klauber, then the President of CBS News, who wrote:

What news analysts are entitled to do and should do is to illuminate the news out of common knowledge or special knowledge possessed by them or made available to them by this organization through its news sources. They should point out the facts on both sides, show contradictions with the known record, and so on.... It is the analyst's function to help the listener to understand, to weigh, and to judge, but not to do the judging for him.

The second test comes from many reporters' favorite fictional City Editor – Lou Grant. In the first episode of that iconic television series, he reads a draft of a story exposing police corruption. Then he turns to the reporter who wrote it.

Lou Grant, smiling: "You're really mad at these guys, aren't ya?"

Reporter (also smiling) "Yeah."

Lou Grant, still smiling: "I can tell." (No longer smiling): "I shouldn't be able to tell. … Rewrite it!"

Both Sunday's Herald story, and the one I'll discuss in the next post, flunk these tests.