Thursday, January 19, 2017

Just what we need in child welfare: less accountability!

Pity the poor, oppressed “mandated reporter” of child abuse.
Sure, they already have protections from lawsuits that are so strong that they have to not only violate the law but have good reason to know they’re doing it, or be acting maliciously, before a jury can even consider what they’ve done to an innocent family.

But, says Franne Sippel, that’s not enough! How does she know? Because out of the millions of times mandated reporters have filed reports – or in some cases, even seized children on their own authority – she’s found a handful in which the reporter was sued or faced some kind of retaliation.

Since the entire structure of American child welfare is built on a foundation of horror stories, it’s no surprise that they constitute Sippel’s entire “evidence base.” But even some of the horror stories don’t hold up to scrutiny. She cites five instances of alleged retaliation against a mandated reporter, but provides supporting evidence for only one of them.
Then she cites two court cases. But she links only to items that support her position – not the actual court decisions.  The decisions tell a different story.
What the Courts Said

In one case, Sippel writes that “G.J., an infant, sustained skull and rib fractures while in his parents’ care. The story his mother gave was medically inconsistent with his injuries. Radiologists suspected child abuse, which was consistent with medical literature.”
But according to the actual decision, the parents made a strong case that there was overwhelming evidence abuse did not cause the child’s injuries, and that the doctor they sued allegedly used deception and coercion to hold the child in the hospital needlessly. Ultimately the child was separated from his family for months before a court ruled that, in fact, there had been no abuse.

The court did not say the doctor did all these things, ruling only that there was enough evidence to allow a jury to decide. But Sippel thinks even that is too much of a burden for a mandated reporter to bear.
Sippel also doesn’t link to the actual decision in the second case she cites. That decision paints a picture of a school administrator allegedly waging a vendetta against a parent fighting with the school over a child’s special education plan. The court found that “… the facts taken in the light most favorable to [the accused] suggest that she embellished or entirely fabricated [some] allegations, including those that most clearly suggested sexual abuse.”

Again, the court did not say the administrator is guilty – only that the alleged conduct is not protected by immunity, so the parents have a right to let a jury decide if it took place.
And, of course, the horror stories go both ways. Consider these cases of mandated reporters abusing authority. And this one.  And this oneAnd this story noting how even landlords are getting into the act, using false child abuse reports to retaliate against tenants.

What HHS Said

Sippel’s claim that “The Secretary of Health and Human Services made recommendations to Congress for strengthening immunity in child maltreatment cases” is also misleading.

The tone of the HHS report certainly is sympathetic to mandated reporters; as one would expect, since the authors consulted only mandated reporters. What would a report that questioned only the falsely accused and the lawyers who represent them have found?
But the report makes no actual recommendations of its own. Rather, it passes on recommendations from mandated reporters. Surprise! They want even less accountability.
Indeed, the extremism of some seeking to avoid accountability knows no bounds. This can be seen in the notorious “right-to-lie” case, in which child welfare caseworkers claimed they were not constitutionally prohibited from outright lying to the court to get a child taken from her mother.

In what The Chronicle aptly characterizes as an “epic dis” of this argument, the Ninth Circuit Court of Appeals points out that California passed a law specifically stating that immunity does not apply to child welfare workers who, acting with malice, commit perjury and fabricate evidence.

That seems pretty basic. But, the decision notes, the association of county welfare directors and the National Association of Social Workers, among others, actually opposed the law!
And finally, if you’re going to argue that even minimal accountability for mandated reporters might discourage them from reporting, “leading to more abuse and deaths,”  you probably should not choose a case from Pennsylvania as your example, as Sippel does.
In the wake of the Jerry Sandusky scandal at Penn State, reports alleging child abuse have skyrocketed, deluging the state hotline and county child welfare agencies. And of course, in parts of the state, foster care has skyrocketed as well.

All of which makes it less likely workers will have time to find children in real danger – leading to more abuse and deaths.