Sunday, December 9, 2018

Secrecy and arrogance breed a culture of lying in child welfare

The examples below do not mean that lying is rampant in child welfare systems.  But they illustrate a pervasive tolerance of whatever lying does exist.

There was an extraordinary moment in a courtroom in Houston in October.  A child protective services caseworker was asked about apparent inconsistencies in things he had said at a previous hearing on the same case.  He responded by asserting his Fifth Amendment right against self-incrimination.  He did it repeatedly.

Then the supervisor on the case testified. She did not take the Fifth.  But, as Keri Blakinger of the Houston Chronicle reports, she “drew incredulous looks in the courtroom when she so frequently claimed that she didn’t know, couldn’t answer or didn’t understand the question that [a lawyer] eventually asked if she had any knowledge that made her qualified to  make decisions.”

Judge Mike Schneider ultimately ruled that the children in this case should not have been taken away.  Indeed, the removal may have jeopardized one child’s heath.  Judge Schneider actually ordered the Texas child protective services agency to stay away from the family. And he ordered the agency to pay $127,000 to cover the family’s legal fees and other costs.

Judge Schneider branded the agency’s behavior “dishonest” and possibly “malicious.” He ruled the agency “abused the legal process” by deliberately filing pleadings that included “misstatements of fact” and “material omissions.” 

“It can be inferred from the context of [the caseworker’s] testimony,” the judge wrote, “that he invoked his Fifth Amendment [rights] …to avoid admitting to perjury.”  He ordered the child welfare agency to provide training to all staff “regarding the truthfulness owed to the court and the penalties for perjury.”

Yes, that’s right.  A judge found that CPS workers actually need to be trained to know they’re not supposed to lie in court.  And he’s not the only judge who’s felt the need to point that out.

Other examples

It would be bad enough were this the only such case.  In fact, it’s another example of a culture of lying that permeates the child welfare system.

● In Connecticut alone, between 2004 and 2007, two different judges blasted that state’s child welfare agency for misleading them in court.  One judge called a caseworker’s reports “disingenuous,” “misleading” and “intellectually dishonest.”  In another case the judge ruled that a caseworker deliberately distorted the facts of a case in order to persuade a court to remove a child. The judge found that the worker sought to “manipulate the facts” and “mislead the court.” Much as her counterpart in Texas would do years later, she urged the child welfare agency to explain to caseworkers the penalties for perjury.

● In 2016, a caseworker in California actually claimed what amounted to a constitutional right to lie.  The worker didn’t admit to lying – though a jury said she did – but when she was sued she argued she was 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 immunity does not apply to child welfare workers who, acting with malice, commit perjury and fabricate evidence.  And well, yes, the caseworker might have known it was immoral and unethical but, hey, her lawyer argued, that doesn’t mean she knew it was also unconstitutional.

Fortunately, the courts did not buy this. But what does it say about child welfare that a federal court actually had to explain to caseworkers that “There are no circumstances in a dependency preceding that would permit government officials to bear false witness against a parent.”

This tolerance, or worse, of lying, goes far beyond individual workers.

The Connecticut caseworkers were not sanctioned.  The worker in the California case actually was promoted. At one point she was training other caseworkers.  And that law that denies immunity to lying caseworkers actually was opposed by the California County Welfare Directors Association and the California chapter of the National Association of Social Workers.

In Texas, the child protective services agency did not penalize the caseworker who took the Fifth or the supervisor whose testimony sounded so much like Sergeant Shultz in Hogan’s Heroes.  

The agency declared: “Our actions in this case were appropriate.” They've appealed the financial sanction imposed by the judge.

And then, attorneys for the parents allege, it got worse.  They say an investigator for the County Sheriff’s office contacted them to tell them that “at least ten CPS workers up and down the foodchain” called to pressure him into bringing criminal charges against the parents. Both the CPS agency and the sheriff’s office deny it.

It’s not just the caseworkers

The culture of lying in child welfare goes beyond child protective services agencies.

A judge in Snohomish County, Washington concluded that the county’s Court-Appointed Special Advocates (CASA) program engaged in “the blatant withholding and destruction of evidence and … rampant continuing lying …”  The judge continued:

This was not just a lot of lying. It was lying with no concern that you were lying. It was lying with ‘I don’t care if I get caught.’ It was lying again and again and again after getting caught. It was lying under circumstances where it could be absolutely proven you were lying.

But what about judges themselves?

In order for the costs of a foster care placement to be eligible for partial federal reimbursement, a judge must check a box on a form certifying that the child protective services agency made “reasonable efforts” to keep the family together.  In Michigan, 40 percent of judges surveyed admitted to lying about this – they checked the “reasonable efforts” box even when they didn’t believe the agency had made “reasonable efforts.”  And that’s just the percentage who will admit it in a survey.

All of this is before we reach the common claims that may not quite be lies, but are blatant misrepresentations, such as assertions about the rate of abuse in foster care and due process. (There is way  more of the former and way less of the latter than people in the system claim.)

A hothouse for lying

Is child welfare’s culture of lying worse than that in other professions?  I don’t know. I certainly hope so – it would be depressing indeed to think that all professions functioned this way.  What I do know is that a typical child welfare system is a hothouse for lying – the conditions are perfect.

For starters, almost everything is secret.  Almost all the records are secret and in most states, so are the court hearings. (Texas is an exception; if not for that we might never have known about the case in Houston, and certainly wouldn’t have gotten such vivid accounts of what went on the courtroom.) 

The secrecy promotes a “veto of silence” that prevents this kind of lying from being exposed.  For most of the public and the media any parent whose child is taken away is presumed to be a “child abuser” – regardless of the facts of the case.  So who is going to believe a “child abuser”  over a caseworker, much less a CASA or a judge?

The very fact that CPS workers’ mission is so vital breeds an ends-justify-the-means mentality at best and a dangerous hubris at worst.  More than 25 years ago, a Florida caseworker allegedly told families “I have the power of God.”  The attitude boils down to:  We’re saving lives here, so what’s wrong with a little lying?  (Plenty, it turns out, as those cases in Connecticut, Texas and California make clear.  In all of those cases it was the children who suffered because of the lying.)

None of this means that lying is rampant in child welfare systems (though no family who has been  But there is a pervasive tolerance of whatever lying does exist.
lied about is likely to believe that it isn’t).

That can change, but only if we demand transparency from child welfare systems. That means a strong rebuttable presumption that all court hearings and most records are open.  But it also means we need to question our own preconceived notions about everyone in the system, and everyone caught up in it.