Sunday, January 28, 2018

Predictive analytics in child welfare: Sanitized for libertarian consumption

A writer who was barred from blogging for an education journal after writing a column widely viewed as racist now assures us that there is no racism in child welfare – and predictive analytics will correct the racism that isn’t there.

Don’t you feel better already?

An odious piece of child welfare legislation known as the Adoption and Safe Families Act enshrined a “take-the-child-and-run” mindset in federal law leading to an increase in the number of children torn from their homes. It also increased the number of children who “age out” of foster care with no home at all. The former was intentional, the latter was merely predictable. 

A few years after ASFA became law one of those who claims responsibility for writing it, Richard Gelles,  couldn’t resist a little gloating. Gelles is the former dean of the School of Social Policy and Practice at the University of Pennsylvania. In an interview in 2000, he said:
 Initially, this was just supposed to be a safe families bill, not really an adoption bill at all. The adoption component was a way of sanitizing the bill, to make it more appealing to a broader group of people. Adoption is a very popular concept in the country right now. [Emphasis added.]

Of all those who advocate for a take-the-child-and-run approach to child welfare, Gelles is probably the second most extreme – I’d give the edge for #1 to Elizabeth Bartholet, but it’s close. (For a brief critique of Gelles, see this commentary from his faculty colleague, (and NCCPR board member) Prof. Dorothy Roberts.)

So it is appropriate that when right-wing writer Naomi Schaefer Riley needed a way to sanitize the use of predictive analytics in child welfare for a crowd that might be suspicious – libertarians – she turned to Gelles. Gelles was her primary source in an article touting predictive analytics she wrote for the libertarian magazine Reason.

Predictive analytics uses computer algorithms to tell government authorities things like which alleged criminals should get bail, who to investigate as an alleged child abuser and, if some of its strongest backers get their way, which children should be taken from their parents and consigned to foster care.

The failure of predictive analytics in child welfare is discussed brilliantly in this article from Wired, (an excerpt from the new book Automating Inequality), so I won’t discuss that failure in detail again here.  Rather, I want to focus on how Riley tries to win over libertarians.

● She sandpapers down the rough edges of her own take-the-child-and-run rhetoric, which can be found in its raw form in columns for Rupert Murdoch’s New York Post. For Reason, she finds others to say the words with a bit more finesse – though in at least one case, discussed blow, the result is laughable.

● She makes a little room for those of us who dissent, quoting us in what opinion writers commonly refer to as “to be sure” paragraphs (as in “To be sure, the side I don’t agree with says … but of course they’re wrong because …”)

● She – and Gelles – even try to sell us on the notion that they care about errors in all directions  and they really, truly want child welfare systems to use predictive analytics because supposedly it will curb all kinds of error.  So Riley writes:

Every day some kids are forcibly taken from their parents for the wrong reasons while others are left to suffer despite copious warning signs.

Strangely, however, I have been unable to find a Riley column in the Post about the former, but there is plenty about the latter. Indeed, she is a master of the standard technique of the take-the-child-and-run crowd – take horror stories and extrapolate.

Thus she writes that David Hansell, the current commissioner of New York City’s child welfare agency, the Administration for Children’s Services, “has to clean up the mess left by his predecessor …” based on the fact that on that predecessor’s watch children “known to the system” died.  That also happened on the watch of every other ACS commissioner - and every leader of every large child welfare system. In fact, under the leadership of that predecessor Riley does not bother to name – it was Gladys Carrion - child safety in New York City improved. It’s gotten worse, (or should I say messier?) under Hansell.

Riley on race

Most disturbing, given her desire to reassure us that there is no racial bias problem with the use of
predictive analytics, is Riley’s general take on racial issues.

Riley was barred from blogging for the Chronicle of Higher Education after writing a column in 2012 calling for eliminating the entire field of Black Studies – because she deemed three doctoral dissertations “left-wing victimization claptrap.” As others pointed out, that conclusion, is based only on the titles and summaries run in a Chronicle news story.    

With that as the basis, Riley wrote:

… the entirety of black studies today seems to rest on the premise that nothing much has changed in this country in the past half century when it comes to race. Shhhh. Don’t tell them about the black president! 
… If these young scholars are the future of the discipline, I think they can just as well leave their calendars at 1963 and let some legitimate scholars find solutions to the problems of blacks in America. Solutions that don’t begin and end with blame the white man.

Of course Riley wrote that in 2012. She couldn’t have known who would be the next president, and about the racial hatred he would unleash and continues to encourage.  But in 2017, she was still singing from the racism-is-so-over hymnbook.  In a column called “How liberals are killing the NAACP” she writes:
 African-Americans have full legal rights. Hate crimes are anomalies. Black people are running corporations, universities and until recently the White House.

So it should come as no surprise that Riley is a member of what I call child welfare’s “caucus of denial” – the group that believes child welfare is magically exempt from the racial bias that permeates every other aspect of American life. But unlike the liberals in this caucus, who tend to limit the denial to child welfare, Riley goes further, writing:

Just as we cite statistics about incarceration and police intervention without actually asking who is committing crimes, so we blame ACS for getting involved in the lives of too many black and Hispanic children without asking why that might be.

Actually, that question has been asked and answered in study after study.  Some conservatives acknowledge as much. It seems Riley just doesn’t like the answers.

Riley’s “denial” comes in a column trashing the New York Times story about foster care as the new “Jane Crow” – a story that also explains “why that might be,” citing exactly the sorts of cases of needless removal which, in her Reason article, Riley claims to be concerned about.  In the Post Riley sneers at the Times story in her lead:

Everyone’s a little bit racist, even the employees of the Administration for Children’s Services. At least that’s what The New York Times would like us to believe.

In her Reason article, Riley offers up the same message about the Times story, without slathering it in snide. Instead, she quotes Bill Baccaglini, president of  The New York Foundling one of the private child welfare agencies paid by the city to provide foster care.

Some of my best friends are …

First, Riley and Baccaglini fall back on the 21st Century equivalent of the 1960s “some of my best friends are …” line: The system can’t be racist (at least not in New York City), they say, because most of the caseworkers are nonwhite. This ignores the way institutional racism works and it ignores intra-ethnic prejudice, the sad fact that within almost every racial and ethnic group there are biases.

Anthropologist Tina Lee, who wrote an outstanding book about the New York City child welfare system, addressed this during a recent podcast. Said Lee:

In New York City caseworkers often are also women of color; they may come from a slightly different class background. So one of the lessons of this is that these racial biases are not overtly about white people being overtly prejudiced and seeking to control these families. It’s more that we just have these assumptions that are often unconscious. [These are] unconscious biases in our general culture that you don’t escape even if you are a woman of color working as a caseworker.

And then it gets really weird. Baccaglini cites the following as evidence that there is no racial bias in New York City child welfare:

You couldn’t even consider race a variable. It’s a constant.  All of the kids who come into this system, unfortunately, are nonwhite.

Wait. You mean this is how we’re supposed to know the system is NOT racist?

Baccaglini then offers up the standard party line of the denial caucus:

The racial discriminatory aspects of the system happened well before [child protective services involvement] with our opportunity structure … The fact that the mom in the South Bronx cannot get decent medical care; the fact that the mom in the South Bronx cannot get a good job; the fact that the mom was put into an [individualized educational program] and never got a degree and then had a child.

In other words, Baccaglini is telling us, there used to be racism in America and that made Black people bad parents!  (The real story of how child welfare treats families in the South Bronx can be found here.)

The idea that the solution here might be helping the mom with job training, health care and education apparently is not on the table.

A poor understanding of poverty

And that leads to another problem with Riley’s attempt to lure libertarians into a love of big government: misstating the relationship between poverty and the child welfare system.

Adopting a voice of reason tone for Reason that differs from her Post persona, Riley tells us:

There is a bit of a chicken-and-egg problem here. Poverty is highly correlated with abuse. There are a variety of reasons for that, which can be difficult to untangle. Poverty causes stress in marriages and other relationships, and sometimes that stress is taken out on kids.

But that’s only a small part of the story. Yes, of course poverty exacerbates stress and that can lead to more actual abuse. But Riley ignores the larger issue, the confusion of poverty itself with neglect, thanks to broad, vague laws that often define neglect as lack of adequate food clothing or shelter.

Once again, she is more direct in the Post, where she can appeal directly to her right-wing base. There, she offers a critique of social work education similar to her assessment of Black Studies – but this time she relies on course catalogues instead of dissertation summaries.

She finds it deeply disturbing that one school of social work offers a course exploring “poverty in the context of oppression, diversity and social justice” and another has one that helps students “challenge bias, prejudice and forms of discrimination…” This supposedly proves that social work education often is “boxed in by political correctness in an industry where that can be deadly.”

Given all this, it’s no surprise that in Reason she echoes the argument of the white middle-class foster parent who extolled predictive analytics in child welfare in an article for The New York Times Magazine: There is no racial bias in child welfare – and predictive analytics will fix the bias that already doesn’t exist!

Whitewashing failure in Los Angeles

Like the Times Magazine writer, Riley also has a problem dealing with the failure of the first predictive analytics experiment in Los Angeles, known as AURA. The Times Magazine story solved the problem by ignoring it altogether.  Riley takes a more confusing approach. She touts its alleged success, but then notes that

Nonetheless, [the Los Angeles child welfare agency] ultimately concluded that AURA was "fatally flawed."
Riley’s only explanation:

Perhaps because they realize how sensitive the program is, and how much relying on the wrong model could have undermined public confidence, they are self-reflective and critical in a way you might not expect from government bureaucrats.

Yes. That must be it.  It can’t possibly be because the experiment had a false positive rate of 95 percent – that is, 95 percent of the time, when the model predicted something terrible would happen to a child, it didn’t.  Riley never mentions this in her story.

So add Naomi Schaefer Riley to the long list of take-the-child-and-run advocates who are pushing predictive analytics, such as Gelles, and Bartholet. 

And almost all of them now are trying to persuade us that, really, truly, predictive analytics will curb the needless intrusion into the lives of Americans and the wrongful removal of children, something none of them has shown any indication of caring much about before.  It reminds me of how congressional Republicans suddenly embraced the Children’s Health Insurance Program, when they thought it would help them score political points during the debate over the recent government shutdown.

There is nothing libertarian about predictive analytics in child welfare. It’s just big government conservatism.

Thursday, January 25, 2018

NCCPR in Youth Today: When horror-story cases lead to horrible laws

The recent revelations about horrific abuse of 13 children and young adults in California have prompted a spate of commentary suggesting that all homeschoolers effectively be treated as suspected child abusers.  It's another example of why horror stories make horrible law. 

From NCCPR's column in Youth Today:

The real reason cracking down on home-schoolers has such appeal, particularly for some of my fellow liberals, is because, well, “we” all know what “they” are like. Although all sorts of people choose home-schooling for all sorts of reasons, “home-schooler” immediately conjures up an image of right-wing fundamentalists.

So try this. Whenever you read a proposal for compulsory inspections of the children of home-schoolers, try substituting the word “terrorism” for child abuse and “Muslim” for “home-schooler.” Then see if the idea is still so appealing. 

Sunday, January 21, 2018

INDEFENSIBLE: Here’s the real message from a child welfare system in Upstate New York: 1. We’re supremely arrogant. 2. We hate accountability. 3. We want to stay that way.

Given a chance to replicate a model family defense program with a proven track record for reducing needless foster care, improving child safety and saving taxpayers money – at no cost to the county – metropolitan Rochester said no.

UPDATE, NOVEMBER 2023: Metropolitan Rochester now has a better class of politician.  They've accepted the grant and the program is up and running!


There is much more news and commentary on this issue:

The Rochester Democrat and Chronicle has an excellent story and an excellent editorial

The Daily Record, which first broke the story, has a follow-up.

The Daily Record also has an excellent op-ed column from Michele Cortese, executive director of the Center for Family Representation.

WXXI Public Radio also has a very good story.


And one more excellent story, from Rochester City Newspaper

In the 1980s, when I was a reporter in Rochester, N.Y.,
 the Chamber of Commerce used this slogan.
I've updated it slightly to reflect current reality.


● More than a decade ago, New York City pioneered a model of family defense in child welfare cases. Impoverished families got a defense team including a social worker and a parent advocate as well as an attorney with a reasonable caseload. 

● In the years since, foster care was curtailed, so children were spared enormous needless trauma from wrongful removal and from being moved from foster home to foster home. They also were spared from the high risk of abuse in foster care itself.  At the same time, child safety improved. The model was so successful that the city child protective services agency supported it, and the city repeatedly expanded it. 

● A similar program in Washington State has earned similar support from “all sides” and achieved similar results.

● So when New York State offered grants to Upstate counties interested in replicating the New York City model, the Monroe County (metropolitan Rochester) Office of Public Defender applied.  All of the county’s family court judges supported the application.

● The county won the grant. But then, county officials stepped in and refused to accept the money. In other words, they turned down a chance to help the county’s children with a proven approach – at no cost to the county.

● As one family court judge pointed out, the plan would have done no more than give poor people the same access to justice that the rest of us already have in these cases. But for the Monroe County child protective services agency, that was too much to bear.

In most of the country, when children are torn from impoverished families, those families are almost literally defense-less.

In some states, there is no right to a public defender at all.  And in most states, family defense consists of a grossly overworked public defender or private attorney on a shoestring contract who just met his client outside the courtroom five minutes before the first court hearing – a hearing that often takes place after the child already is in foster care.  (That’s because, contrary to what they so often claim, child protective services agencies and/or law enforcement can take away children on their own authority – and they often do.)

Naturally, most child protective services agencies like it that way. The judge is reduced to wielding a rubber-stamp instead of a gavel; the agency itself becomes the real judge, jury and family executioner.  The agency can make little case or no case, offer no real help to families, and stumble and bumble along as it pleases.

But, as with so many times these agencies take a swing at so-called “bad parents” – the blow lands on the children.

The lack of meaningful defense is one of the main reasons so many children are taken needlessly from everyone they know and love, often when family poverty is confused with “neglect,” and consigned to the chaos of foster care.  That helps explain why two massive studies found that, in typical cases, children left in their own homes fare better even than comparably-maltreated children placed in foster care.  Other studies document the high rate of abuse in foster care itself.

So consider the paradox: Child protective services agencies routinely claim – again, falsely -- that “we don’t take away children – a judge has to approve everything we do.”  But those same agencies are terrified of anything that would actually let those judges hear all sides of the story and make a fully-informed decision.

Indeed, the extent to which a child protective services agency objects to letting judges actually hear all sides of the story – that is, the extent to which it fights meaningful family defense – is a good measure of just how arrogant that agency is and how much it wants to avoid accountability. And that brings us to the child protective services agency in Rochester, New York and surrounding Monroe County.

As it happens, Rochester is where I did some of my first stories about the overreach of child protective services and the harm that does to children when I was a reporter for WXXI-TV, the public television station, and City Newspaper, the alternative weekly.  That was about 30 years ago.

A story last week in a regional newspaper for the legal community, The Daily Record, suggests things have not changed much.

The Record reports that, when offered a chance to replicate a proven model for high-quality family defense – a model shown to improve outcomes for children and save money, a model already in use for well over a decade elsewhere -- with the tab picked up by New York State – the county turned it down.

A little later, I’ll get to the excuses the county offered up for turning down this help (of which my favorite is the claim, which I must admit is true, that attorneys for parents would, in fact, represent parents).  But cutting through the b.s., what the county really is saying is this:

If poor people ever got the same quality of defense the middle class can buy for itself and if those poor people were able to challenge our lousy decisions, poor casework and meaningless cookie-cutter service plans we’d have to up our game. We’d have to stop taking away so many children needlessly, and provide real help to families.

The New York City experiment

This story really begins in New York City in 2000.  An advisory panel formed by the Annie E. Casey Foundation as part of a class-action lawsuit settlement sat in on Family Court hearings.  As they documented in a scathing report, they were appalled. They saw families railroaded, needless placements and judges so terrified of the city’s tabloid press that they admitted, out loud and on the record, that they rubber-stamped removals even when they felt the child protective services agency, the Administration for Children’s Services (ACS), hadn’t made a good enough case.

A member of that panel, John Mattingly, got the Casey Foundation to fund an experimental program in which the newly-formed Center for Family Representation (CFR) would provide high- quality defense counsel for a small number of families.

In addition to a lawyer with a reasonable caseload, each family would be assigned a social worker who could work with the family and craft alternatives to those cookie-cutter “service plans” churned out by ACS.  Often there would be a third member of the team, a parent advocate, someone who had been through the system herself or himself, and could guide and encourage the parents.

At first there was only CFR handling a limited number of cases in Manhattan. But after CFR proved itself and Mattingly became commissioner of ACS,* the city itself began funding parental defense.  Today, CFR and three other providers, the Bronx Defenders, Brooklyn Defender Services and Neighborhood Defender Services of Harlem provide this kind of defense counsel to about 90 percent of the impoverished families dealing with ACS in four of the city’s five boroughs.

Those who cling to stereotypes about everyone who loses a child to the system, believing them all to be sadistic brutes who torture children would, of course, find this upsetting. Those who know who really is in the system understand why this approach is so good for children.

In 2011, Brooklyn Defender Services produced this video about their work:

Brooklyn Defender Services also represented some of the families profiled in the landmark New York Times story about foster care as the new Jane Crow.

The Bronx Defenders was the subject of this story in The Nation

This model of family defense won an award from the New York State Bar Association, and it’s been recognized as a national model by the federal Administration for Children, Youth and Families.

Among the most important reasons for this success: Often these teams can get in early, instead of after the child already is in foster care, and much damage has been done.

As should be clear by now, this is not a matter of “getting bad parents off.”  The early intervention allows the defense team to prove families innocent when they have, in fact, done nothing wrong.  (Yes, I said prove families innocent. In the real world of child welfare, the burden of proof is reversed.)  The team can craft safe alternatives when there is a problem but foster care isn’t necessary, and come up with better ways to safety reunify families when it is.

It’s needed because, as the New York State Office of Indigent Legal Services put it:

Unfortunately, experience has shown that agencies too often wield their emergency removal power in situations where such drastic state action is unnecessary, and without first attempting to address the issues that brought the family to the agency’s attention.

High-quality family defense is one of the reasons that, even with setbacks over the past year, New York City has a relatively low rate of child removal – and, during the years since this model expanded citywide and entries into foster care declined, key measures of child safety improved.

And one thing more. Foster care is more expensive than safe, proven alternatives. CFR alone estimates it’s saved taxpayers $37 million in reduced foster-care costs since 2007.

Washington State also says yes

New York City is not alone.

Washington State started a program of high quality family defense in 2000.
Between 2000 and 2003, of 144 cases in the program in which families were reunified, not one was brought back to court.

“These children aren’t coming back,” said then-Washington State Supreme Court Justice Bobbie Bridge, a supporter of the program, “and we do get them back when we make bad reunification decisions.”

Even the state Attorney General at the time, who had to face the better-prepared lawyers, supported the project and wanted it expanded.

A 2011 evaluation found that in counties that have this kind of representation children are reunified more quickly. And when reunification really isn’t possible, guardianship and adoption occur more quickly as well.

But Monroe County says no

So when New York State’s Office of Indigent Legal Services offered a competitive grant to Upstate counties to test the model, Monroe County’s Office of Public Defender, which has a long and distinguished history in the field of family defense, applied.

Monroe County certainly needs it. Though the county has made real progress in reducing needless foster care, in 2016, the last year for which comparative data are available, Monroe County still took away children at a rate more than 20 percent higher than New York City, when entries into care are compared to the number of impoverished children in both places. For reasons discussed below, the Monroe County record probably was worse in 2017. And, as the Times story documented so well, there remains plenty of needless removal in New York City.

Monroe County won the grant.  Everything was all set to go.

Until county officials stepped in and turned down the money.  It’s not clear exactly who made the decision, but it appears to have been the County Executive, Cheryl Dinolfo. Presumably she was acting on advice from the county child protective services agency.

But she was acting against the advice of all of the county’s family court judges.  Judge Joan Kohout called the initiative “a great idea” adding: “I can’t imagine why they wouldn’t accept this grant, frankly.”

But I can.  One possibility: There was a high-profile death of a child “known to the system” last year, and the child protective services agency has been under intense pressure as a result. Dinolfo may be afraid of doing anything that political opponents could portray as “soft on child abusers.” (In fact, such deaths typically set-off foster-care panics, sharp sudden spikes in needless removal of children. So improved family defense actually is needed more now than at any time in recent years.)

An aversion to accountability

But I think the reasons go deeper – to the typical child welfare agency aversion to any kind of accountability.

What we do know is that the official reasons offered up by the county are pathetic excuses, an attempt to conjure up false images of vicious technicality-wielding lawyers scaring innocent children and hiding the crimes of child abusers.

The Daily Record  quotes a statement from county spokesman Jesse Sleezer, in which he claims that the program

would have injected lawyers into cases of abuse and neglect much earlier, potentially intimidating child victims and limiting access by CPS workers who would otherwise assess and monitor the child’s safety.

Well, for starters, as noted above, they’ve been doing this in New York City since 2002, that hasn’t happened, and the city child welfare agency is so comfortable with the program that it keeps expanding it.

Monroe County Executive
Cheryl Dinolfo
And throughout the modern history of child welfare, from the notorious McMartin Preschool case and others like it, all the way to the last major case to make it to the U.S. Supreme Court (in which my organization’s volunteer vice president served as pro bono counsel for the family) those most prone to intimidate children have been caseworkers, law enforcement and “therapists” – when the children didn’t give the answers they wanted to hear.

But even were this the first program of its kind, and even had been no track record of success elsewhere, Sleezer’s claim would be false on its face.

As Judge Kohout points out, these lawyers would have no magical powers.  It would just put the poor on something closer to an equal footing with people of more means.  Said Judge Kohout: “This program would provide the same right and the same access to legal advice to poor parents.”

And that raises a more fundamental issue: If the child protective services agency is “gaining access” in ways that would be stopped by a lawyer for a middle-class family, then chances are what the agency is doing to poor families is, at a minimum unethical and possibly illegal.  So does Monroe County Child Protective Services want to stop poor people from having higher-quality family defense so it can break the law?

Judge Kohout also understands the real reason why it’s a good idea to use this model early in a case: “There would be great benefit in avoiding dragging people into court and stigmatizing them by giving them that help up front.”

Mr. Sleezer’s other objection

Sleezer offered up one other objection:

The attorneys involved in this pilot program would serve only one client — the parent accused of abuse — and would not have any professional responsibility to serve the best interests of the abused child.

Aside from the fact that the overwhelming majority of parents are not accused of abuse – the charge is neglect – Sleezer is, in one sense, right.  Attorneys appointed to represent parents do, in fact, represent parents. You know; sort of like the way, in criminal cases, defense attorneys don’t also work for the prosecution and prosecutors don’t also represent the accused.

Indeed, by Sleezer’s logic, child protective services agencies shouldn’t be represented in court either, since those attorneys represent the agency’s interests. 

And it is arrogant in the extreme to assume that the interests of parents and children are at odds from the get-go. In fact, that’s part of what judges are there to determine.  What parents’ lawyers really are doing is defending families. In the process, they defend children from all the harm of needless foster care.

Determining whether the course of action recommended by those family defenders, or that recommended by lawyers  representing any other party, should be followed is what we have judges for.

The only a chance a judge really has to sort through competing claims and figure out what’s really best is if all sides get a chance to make the best possible case for their position.  Perhaps that’s why, as noted above, all of Monroe County’s family court judges supported the grant application. 

I believe the technical term for this approach, in which all sides make their best case and a judge issues a ruling, is “justice.”

Apparently, that’s exactly what Mr. Sleezer and his bosses are afraid of.

*Yes, that is the same John Mattingly I often criticized on this blog when he ran ACS. But whatever his failings, he deserves enormous credit for helping to create and expand high-quality family defense.

Tuesday, January 16, 2018

Child welfare, civil liberties and the failure of the Left: The double standards apply to blacklists, too

Second of two parts

In a previous post to this blog, I wrote about a New York Times story that described how police swarmed a middle school and conducted highly-intrusive searches of hundreds of students looking for drugs. They found none. They also had no warrant or other authority to conduct the search.

I noted that this prompted outrage on the Left, a successful lawsuit, and even criminal charges. Yet similar behavior is routine, and often countenanced by self-proclaimed liberals, as long as it’s done by child protective services workers in the name of fighting child abuse.

The Times provided still another chance to examine double standards last month. This time it came in the form of a deeply-moving op-ed column by Tamar Manasseh, founder and president of Mothers Against Senseless Killings.

She writes about her son.  Though he has never been in trouble with the law, Manasseh writes …

He and I constantly fear that one day the Chicago Police Department is going to put him in its gang database, which contains names of 130,000 people suspected of being gang members. If they put your name in it, they aren’t required to notify you. And then if you get stopped by a police officer, there’s a good chance you’re going to end up in jail because it’s so easy for the police to come up with a reason to arrest you. Being in the database can even make it hard to get jobs or professional licenses because employers might find out when they run background checks.
Chicago’s gang database … sweeps in young people who are “likely offenders.” In reality, anyone can get on the list, and for reasons like dressing a certain way, having tattoos or just sitting on their porch at the wrong moment. It’s depressing but unsurprising that more than 90 percent of people in the database are black or Latino, a majority of whom have never been arrested for a violent offense or for a drug or weapons charge.

Once again, there was a lot of sympathy in the comments section, and, I’m sure plenty of concern among my fellow liberals.

The other database of rumor and innuendo

But once again, many liberals are silent – or worse – when it comes to another kind of massive database of rumor and innuendo that also harms children and families: “central registries” of alleged child abusers.

As with that database maintained by the Chicago police, it’s a whole lot easier to be put into one of these registries than to fight your way out.  No actual conviction is required. In most states there is no hearing of any kind beforehand.  The family gets no opportunity to defend itself at all.  Typically a caseworker need simply decide in her or his own mind that it is slightly more likely than not that the accused is a child abuser, and the accused is in the database for years, maybe decades, maybe forever. (In some states they are listed even when the caseworker thinks there is more evidence of innocence.)

And let’s be clear about what is meant by “child abuser.” Given the astounding breadth of laws defining abuse and, especially, neglect, it’s easy to wind up in one of these databases just for being poor.

In some states, there is a long, cumbersome bureaucratic appeals process, usually involving appealing to the same agency that put you in the registry in the first place. In other states, there’s no way out at all.

So it’s no wonder that evidence from class-action lawsuits indicates these registries are rife with error. In New York and Illinois such lawsuits revealed that when people finally make it through the slow, cumbersome appeals process they win 75 percent of the time. (NCCPR’s vice president brought the New York suit.)  In North Carolina and Missouri state supreme courts ruled that the very idea of blacklisting someone first and forcing them to appeal afterwards was unconstitutional. Those courts ruled there must be a hearing before a listing in a central register.

And, as with the Chicago police registry, the victims of this massive infringement on civil liberties often are children.

How child abuse registries victimize children

For starters being listed on a central registry often means you can’t get a job in any field dealing with children. So when an impoverished parent is wrongly listed on the registry it further limits his or her job prospects, increasing the chances that the family will have to endure all the harm of poverty.

But the harm can be even more direct.  The alleged perpetrator isn’t always an adult. The lead
plaintiff in the Illinois lawsuit was listed when she was about 12-years-old – for sexual abuse – because she helped pull up the pants of much younger children who were “playing doctor” in the family’s home day care.

Yet who was front and center a few years ago in demanding that all these sloppy, slipshod databases be combined into a massive national database of rumor and innuendo? None other than that great champion of liberalism, Sen. Chuck Schumer, D-N.Y.  Judging by his quote in this AP story, (which also has an excellent overview of all the problems with central registries), Schumer did not even seem to realize that child abuse registries are nothing like registries for sex offenders which require a criminal conviction before anyone is listed.

Once again, however, hypocrisy is not a one-way street.  I haven’t seen family values conservatives rushing to demand curbs on the Chicago police gang database either. 

Monday, January 15, 2018

Child welfare and civil liberties: When we betray our principles, we betray our children

First of two parts

Late last year, The New York Times published a story about the frightening amount of power, and the frightening lack of accountability, among some of America’s county sheriffs. It included this example:

This year, the sheriff in Worth County, Ga., ordered his deputies to enter the local high school in search of drugs. They lined up 850 students with legs spread and hands against the hallway walls. Deputies inserted fingers into girls’ bras, and touched their underwear and genital areas while searching in their waistbands or reaching up their dresses, according to the Southern Center [for Human Rights], which sued the sheriff.
The deputies had no warrant or other authority to conduct the search, the suit charged. No drugs were found. … The Georgia sheriff was recently indicted in connection with the mass search and has pleaded not guilty. The lawsuit resulted in a $3 million settlement.

Wow. A $3 million settlement and criminal charges – charges that included a misdemeanor count of “sexual battery.”  Just goes to show what happens when advocates of civil liberties mobilize.  Even authorities with all that power can be held accountable.

A random sample of the nearly 200 comments on the story found unanimous condemnation of the abuses outlined in the story (of which the example above was only one) – not to mention a rush to blame it on political conservatives.

Now, consider a far more common infringement on civil liberties, as described by The New Yorker:

You will hear a knock on the door, often late at night. You don’t have to open it, but if you don’t the caseworker outside may come back with the police. The caseworker will tell you you’re being investigated for abusing or neglecting your children. She will tell you to wake them up and tell them to take clothes off so she can check their bodies for bruises and marks.

Even though this story described the rule, not the exception, there were no cries of outrage from civil libertarians. And the letters to The New Yorker in response to the story defended the people inflicting this infringement on civil liberties on defenseless children.

Because, of course, the people doing this to children were not sheriff’s deputies, they were – and are
– child protective services workers.  The differing responses illustrate, once again, that the quickest way to get many liberals to renounce everything they claim to believe about civil liberties is to whisper in their ears those two magic words “child abuse.” (The Left has no monopoly on hypocrisy – it was that great “family values conservative” Newt Gingrich who proposed confiscating the children of the poor and throwing them into orphanages.)

Just say the magic words

But for many on the left, call it a child abuse investigation and suddenly, behavior which in any other context would be sexual abuse is deemed acceptable. Behavior like this concerning a six-year-old:

The caseworker says that she needs to take pictures of Jackie’s body. Her mother, visibly shaken, again expresses discomfort, but the caseworker tells her “Oh, don’t worry. It’s more stressful for the parent than it is the child.”
And so Jackie’s mother helps Jackie to take off her clothes. The caseworker asks Jackie to lie down on the bed and spread her legs. Despite having no training in this specialized work, she then “[takes] pictures of Jackie’s vagina and buttocks in a closed position, and then instruct[s] [her mother] to spread Jackie’s labia and buttocks, so that she [can] take pictures of the genital and anal areas.” For months afterwards, both Jackie and her mother suffer from nightmares, anxiety, and depression.
Finding no basis to substantiate its concern that the child may have been abused, the state closes its case file.

Or consider the case in which these questions ultimately reached the U.S. Supreme Court (which ducked the issue) – a case in which NCCPR’s Vice President served as pro-bono counsel for the family:

Nine-year-old Sharon [not her real name] was removed from her classroom by school officials and escorted to another room in the school where she was met by two men, one of them a uniformed deputy sheriff carrying a gun.  They had no permission from any court; no neutral arbiter had decided first if what these men were about to do really was necessary.
For two hours Sharon was interrogated.  She was badgered relentlessly when she did not give the men the answers they wanted to hear.  She was too scared to leave the room, too scared even to ask for a glass of water.   She realized that the only way out was to lie.
Needlessly to say, Sharon was not a criminal.  On the contrary, the two men thought that maybe Sharon had been abused, and this seemed to them the most convenient way to find out.
But the botched interrogation led only to lies and confusion.  And it set off a cascade of error that caused even more trauma to Sharon including a stripsearch, a highly traumatic medical examination and several weeks consigned to America’s chaotic system of foster care.

Should “speculation and hearsay” really be enough?

In their own brief to the Supreme Court authorities in Oregon, where the case arose, actually said they should have the right to do this to a child based on – their words – “speculation and hearsay.”

Not everyone on the Left turned a blind eye. On the contrary, the case was notable for the fact that groups on the left, such as the Southern Poverty Law Center, the National Center for Youth Law, the Juvenile Law Center and many groups that represent children in child welfare cases as well as groups on the right such as the Family Research Council and the Eagle Forum filed “friend of the court” briefs supporting the family.

But there were some notable absences. The American Civil Liberties Union remained silent. (That’s not unusual. At the national level, when it comes to the notion of applying civil liberties to child welfare, the ACLU tends to be AWOL.)  The group that so arrogantly calls itself “Children’s Rights” does not seem to think those rights should include the ones covered by the Fourth Amendment. And the National Association of Social Workers actually submitted a brief supporting the nearly unlimited power to subject children to this kind of trauma.  (The Clinical Social Work Association, in contrast, stood up for the children.)

Meanwhile, in still another appalling case, in which girls were stripsearched in front of a male police officer, a lawsuit has been brought for the family by a conservative group, the Home School Legal Defense Association.

The intrusion doesn’t have to rise to the level of a stripsearch to be traumatic.  The questioning alone can traumatize a child, particularly a young child.  As three of the leading child welfare scholars of the 20th century, Anna Freud, Joseph Goldstein and Albert J. Solnit wrote, in calling for far higher standards before ever intervening in families:

Children react even to temporary infringement of parental autonomy with anxiety, diminishing trust, loosening of emotional ties, or an increasing tendency to be out of control.

The Baltimore Sun recognized this in an editorial cautioning against toughening “mandatory reporting” laws – even at a time when the pressure to toughen those laws was greatest, right after the crimes of former Penn State coach – and foster parent - Jerry Sandusky were exposed. As the Sun wrote:

Moreover, abuse investigations are inherently traumatic for children. They often involvehours of intensive questioning about sensitive issues of sexuality, shame and guilt as well as intrusive physical examinations that frighten and humiliate suspected victims. The stress brought on by such procedures can leave lasting emotional and psychological scars even on children who turn out not to have suffered abuse.

The new normal

That kind of intrusion is the new normal for Black families. Arecent study found that 53 percent of African American children will endure a child abuse investigation before they turn 18. 
Indeed, the very fact that the child welfare system targets almost exclusively poor families and disproportionately families of color helps explain the lack of outrage, especially in the media and among politicians. One can see that in Massachusetts when all of a sudden media and politicians did get outraged – when it happened to people of their race and their class: middle-class foster parents.

But that doesn’t explain all of it.  Stop-and-frisk targets the poor and it targets people of color. Liberals can be relied upon to be outraged by it. Yet many of the same liberals who will rise up in righteous wrath against infringements of the civil liberties of adults by law enforcement stand silent or, worse, defend the routine violations of children’s civil liberties in the name of “child protection.”

Similarly, some liberals who would never think it’s o.k. to throw a passenger off a plane just for speaking Arabic will gladly seek to instill paranoia in our children – and even promote the extremely dangerous practice of defensive driving – again, in the name of “child protection.”

After all, they will say, a child abuse investigation is different – it’s done to protect the child.  But infringements against civil liberties almost always are justified by invoking noble goals – that’s why defending civil liberties often is unpopular.  That sheriff in Georgia could argue that he, too, was simply trying to protect children – from the scourge of drug abuse.

All this explains why the due process protections we take for granted in most areas of law are largely absent in child welfare.  But whenever we on the Left betray our principles, we also betray our children.

Read Part Two here

Sunday, January 14, 2018

UPDATED: In Indiana, a child welfare chief resigns with a “ransom note” and the Foster Care Excuse Machine cranks up

Child welfare has been much in the news in Indiana lately for all the usual reasons – deaths of children “known to the system” and a surge in removals of children from their homes blamed – falsely – on the opioid crisis

When she resigned as head of the state’s child welfare agency, the Department of Child Services, Mary Beth Bonaventura threw gasoline on the fire.  As I noted in an op-ed column for the Indianapolis Star, her resignation letter had all the subtlety of a ransom note.  The message boiled down to: “Give DCS more money or children will die!”

[UPDATE, FEBRUARY 8, 2018: It turns out, children in Indiana were dying at a higher rate long before Bonaventura submitted her ransom note / resignation letter.  Indiana is in the midst of a foster-care panic, a sharp, sudden increase in children taken from their homes. The panic began in 2014, while Bonaventura was running the agency. In the years since the panic began child abuse deaths are up significantly over the years before the panic. Bonaventura had to know this long before she "predicted" an increase in future years.  Details on this are in this NCCPR column for Youth Today.]

Brian Bosma, speaker of the
Indiana House of Representatives
Among other things, I pointed out that Indiana already spends on child welfare at a rate that is, proportionately, well above the national average. That’s because Indiana tears apart families at the fourth highest rate in America, and in child welfare the worse the option the more it costs. Spending more won’t do any good unless Indiana learns to spend smarter, by bolstering services to families instead of going on a caseworker hiring binge.

At about the same time, Brian Bosma, Speaker of the Indiana House of Representatives, played the role of the boy in the fable of The Emperor’s New Clothes. While so many others shouted about the need to just spend more money, Bosma said, in effect: Hey wait a minute. Why are we throwing so many more children into foster care than neighboring states?

At that point, the Foster Care Excuse Machine cranked up:

A Star story concerning Bosma’s remarks includes this:

[S]tatistics show that the number of children entering foster care because of parental drug abuse — of any kind — has climbed significantly faster in Indiana compared to neighboring states, according to an analysis by Child Trends, a national research organization focused on child well-being.

An incentive to check a box on a form

But that’s not quite correct. “[E]ntering foster care because of parental drug abuse …” does not mean such drug abuse was proven – far from it. It means only that a caseworker checked a box on a form saying something like “suspected drug abuse” and a judge then agreed to the removal.

Since judges tend to stereotype and stigmatize drug using parents in much the same way as many in child welfare, the incentive to check the box on the form, regardless of the amount of evidence, is obvious.  So Indiana caseworkers may simply be more prone to check that box on the form.

In 2016, Indiana took away children at nearly two-and-a-half-times the rate of Ohio – yes, Ohio, the state often spoken of in the same breath as Indiana as epicenter of the opioid epidemic. It strains credulity to think Indiana really has two-and-a-half times as many cases of drug abuse that genuinely require removal of a child to foster care.  Rather, this means that while Ohio also is prone to resort too quickly to foster care, at least there are some counties finding better alternatives.

And that suggests another possibility: The workers in Indiana are checking the boxes on the forms correctly, but Indiana’s longstanding culture of child removal makes it more likely than the other states that caseworkers will assume, wrongly, that the best answer to the problem is foster care.

Cozying up to private agencies

There was something else alarming in Bonventura’s ransom note/resignation letter.  She writes:

Foster parents, child-placing agencies and residential treatment facilities are the backbone of the child welfare system, caring for our most traumatized and vulnerable children on a daily basis. Efforts are now being made to undermine the collaborative relationship that has been established and return to the adversarial, litigious relationship that predated me.
This is alarming in so many ways it’s hard to know where to start. But I’ll start with residential treatment.  This is, by far, the worst option for children – and the most expensive. There is no evidence whatsoever that it works, and considerable evidence of harm.  Many states are striving to cut it way back or phase it out entirely. To claim that this massive failure is any part of “the backbone of the child welfare system” suggests a leader out-of-touch with best practice in child welfare.

More generally, “child-placing agencies” typically are paid for every day they hold a child in care. That doesn’t make them evil; most people who run them and work for them genuinely believe they are doing what is best for children.

Nevertheless, we know that these kinds of financial incentives prolong needless foster care. And we know that when the relationship between private agencies and the government that is supposed to oversee them becomes too cozy, agency performance tend to deteriorate, leading to far more abuse in foster homes and institutions.

Most of us would be horrified by a Food and Drug Administration Commissioner who bragged about a "collaborative" relationship with the pharmaceutical industry or a Securities and Exchange Commissioner who bragged about cozying up to hedge funds.  It should be no different in child welfare. Any government agency responsible for the health and safety of children should not have a cozy relationship with private providers – it should be an aggressive watchdog over those providers.

And finally, the good news

Indiana Governor Eric Holcomb
At the end of the op-ed in the Star, I write that Indiana “needs a discussion of these issues that is more nuanced than a ransom note.” The good news is, Indiana is likely to get it.  Governor Eric Holcomb made a good choice in bringing in the Child Welfare Policy and Practice Group to study the Indiana system. It’s run by Paul Vincent, one of those responsible for turning Alabama into, relatively speaking, a leader in child welfare. (A lawsuit brought by the Bazelon Center for Mental Health Law, where a member of my group’s volunteer Board of Directors is Legal Director, also helped.)

The Child Welfare Policy and Practice Group’s track record suggests that the reports it produces about Indiana will be tactful in their language, but they won’t pull any punches. Their recent report on Iowa is a good case in point. If the governor was looking for a whitewash, he turned to the wrong consultant. [UPDATE, FEBRUARY 8, 2018: Already, the consultants have pointed to the high numbers of children in foster care as one of two key "challenges" facing DCS.]

If those who now exploit child abuse tragedies for cheap headlines really want to help the state’s vulnerable children, they should pay close attention to the consultants’ recommendations.