we’ve learned a lot of ugly truths about the criminal justice system. (By “we,” I mean, those of us who are white and middle class. Poor people and people of color have known all along.)
But at least in criminal justice, every accused is entitled to a lawyer – though not necessarily an effective one. At least in criminal justice conviction requires proof beyond a reasonable doubt. At least in criminal justice, the records and the trial are public. At least in criminal justice, almost everyone now admits that racial bias is a problem, even if they disagree about how much of a problem.
And at least in criminal justice, a police officer sued after allegedly perjuring himself probably wouldn’t say, “Gee, I had no idea that was unconstitutional.”
In contrast, none of these protections is universal – and most never apply at all – in cases where the stakes often are higher: cases in which a child protective services agency decides to consign a child to the chaos of foster care.
The right to counsel, and whether hearings are open or closed, vary from state to state. In every state, child protective services can hide almost every mistake behind “confidentiality” laws. Homes can be searched and children can be strip-searched – and seized – without a warrant.
The standard of proof for a court to rubber-stamp removal of a child is only “preponderance of the evidence,” the same standard used to determine which insurance company pays for a fender-bender.
And there is an entire coterie insisting that people in child welfare are so special, so superior to the rest of us, that racial bias isn’t even an issue. Stripped of all the blather and euphemism, their position boils down to this: Of course there to be racism in America, and that made African-Americans and Native Americans bad parents, so we have to take away their children. Common sense, , say otherwise.
Now, we can add one more difference: A child protective services caseworker, Marcia Vreeken, is claiming what amounts to a constitutional right to lie. Vreeken does not admit to lying – though a jury said she did – she merely says that even if she did, she’s entitled to immunity from civil suit.
This is the latest turn in a long set of cases involving a mother in Orange County, Calif., Deanna Fogarty-Hardwick and her two children, Kendall and Preslie. The mother and the children, now young adults, all have brought civil lawsuits.
The mother won a record damage award of $4.9 million after a jury found that Vreeken and another caseworker filed false reports and withheld evidence which would have cleared Fogarty-Hardwick. An appellate court judge said it was clear the judge and jury felt “the wrongful conduct was not an isolated incident.”
And now, in response to Preslie’s lawsuit, Vreeken is arguing that she is entitled to immunity because she didn’t know that lying to a court was a violation of the family’s constitutional rights. Sure, there’s a California statute that says you’re not supposed to do this, and well, yes, she might have known it was immoral and unethical but, hey, that doesn’t mean it’s also unconstitutional.
The oral arguments don’t indicate Orange County’s official position on this, but here’s a clue: Instead of firing Vreeken, the Orange County Department of Social Services . As of 2011, Vreeken was training other caseworkers.
Consider the message this sends to the frontlines. Caseworkers often are scapegoated if they leave a child in her or his own home and something goes wrong. But demand that a mother “submit” to your will, take the children and run and then lie about it, and not only will you be punished, you’ll get a promotion.
Consider as well the one key difference between this case and so many others: Ms. Fogarty-Hardwick and family had the financial resources to wage a long fight, and ultimately be compensated for what CPS did to them. This was one of those rare cases where CPS reached into a white middle-class family.
What do you really think goes on when the family is poor and non-white?