Monday, April 22, 2019

News and commentary round-up, week ending April 22, 2019

You know how child welfare agency apologists always say “We can’t take children on our own – a judge has to approve everything we do”?  Well, WNYC Public Radio broadcast an outstanding story last week on how the New York City Administration for Children’s Services abuses its power to remove children without asking a judge first.  (And please keep in mind: New York City exercises more restraint about child removal than most places.  That doesn’t mean the New York City system is good; it just means that wherever you are, it’s probably worse.)

Also in New York City, an elite private school files a false child abuse report against the family of one of its students.  Then, when the family sues, they attack the family in a mass email.  I took a particular interest in this one, because it happens to be the high school from which I graduated 47 years ago.  I wrote about it here.

The Chronicle of Social Change has a story about the recent American Bar Association Parent Representation Conference.

And I have a blog post about why the latest McLawsuit from Marcia Lowry stands a very good chance of making Oregon’s already horrible child welfare system even worse.

Sunday, April 21, 2019

The last thing Oregon child welfare needs is another McLawsuit

The track record of the group bringing the suit suggests there’s a good chance it will make the state’s horrible child welfare system even worse.

            Never assume that things can’t get worse for the vulnerable children of Oregon.  The horrors of the Oregon child welfare system have been documented extensively. The real reason for those horrors, the state’s obscene rates of taking away children and trapping them in foster care – is mentioned only occasionally, except on this blog, of course.

            And now, compounding all the other problems, the system is on the receiving end of a lawsuit that stands almost no chance of making the system better – and a good chance of leaving it even worse.

            The lawsuit was brought by A Better Childhood, a group that brings these sorts of McLawsuits across the country.  Marcia Lowry founded A Better Childhood (ABC) after leaving another nearly identical group she founded (with a lot of help from corporate raider Carl Icahn) - the group that calls itself Children’s Rights (CR). That group brings the same sorts of McLawsuits - though at least with CR, there’s been a little bit of improvement in the years since Lowry left.

            The problem is not that the Oregon system doesn’t deserve to be sued.  Of course it does; it’s every bit as awful as this lawsuit says it is, and then some.  The problem is not that it’s a bad idea to sue failing child welfare systems. It’s an excellent idea. But you have to bring the right kind of lawsuit.  This isn’t it.

           Like the other McLawsuits filed by Lowry at ABC and before that at CR, this is a lumbering document that seeks puny bureaucratic remedies, a caseworker hiring binge and, of course, another foster parent recruitment campaign.  If Oregon is lucky this will simply create the same lousy system only bigger. That’s bad enough.  But in several cases these lawsuits actually have made systems worse.

            That’s because Lowry has shown no interest in keeping children out of the system in the first place, only in “fixing” foster care once they’re already in.  But as the repeated failure of her lawsuits and the success of an alternative approach have proven, the only way to fix foster care is to have less of it. 

           So, in an interview, Lowry declares that "The big problem is that Oregon has failed to develop specialized placements or even enough placements for kids in care.” 

          That's wrong. 

          The big problem is that Oregon takes away too many children – tearing them from their families at a rate more than 40 percent above the national average and holding them in foster care at a rate  more than 65 percent above the national average.

          If Oregon simply took away children and held them in foster care at a rate no worse than the national average, the number of children in "placements" would plummet and the "shortage" of placements would disappear.  

          Oregon does have enough placements – but many of them are being taken by children who don’t need to be in foster care.  Even the lawsuit itself makes that clear.

Judging by the limited information in the lawsuit Complaint, in several cases, the named plaintiffs in this suit could, in fact, have remained safely in their own homes had the families received the right kinds of help.  Yet even if this lawsuit is completely successful there is nothing in it that would make it any more likely that this help will be provided to children like them in the future.

But perhaps the best measure of how out-of-touch Marcia Lowry is with best practice in child welfare, and how alarmed advocates for children are about the damage she can do, came when she brought the latest in a long line of lawsuits against the system in in New York City.  The city is unusual in the fact that there is a network of high-quality providers of counsel for parents and for children.  Those providers, the parents’ lawyers and the children’s lawyers – came together, standing united to oppose her pointless, harmful lawsuit.

Full details concerning how these McLawsuits fail are in NCCPR’s publication The Children Wronged by “Children’s Rights.”  But here’s a brief overview of what’s happened across the country.

The track record

            ● In Michigan, Lowry’s lawsuit settlement requires the state to cut caseloads – just as is demanded in the Oregon suit.  But instead of requiring Michigan to do that by controlling needless removal of children and bolstering programs to keep children out of foster care, the settlement allowed Michigan to slash its already meager funding of prevention and family preservation in order to fund a child abuse investigator/foster care worker hiring binge.  And that’s exactly that the state did.

Michigan also cut basic assistance to poor families – and said it wasn’t a problem because they also were hiring more child abuse investigators (thanks to the settlement).

The Michigan settlement also has led to the expulsion of hundreds, perhaps thousands of children from the homes of grandparents and other relatives because those relatives were unable to meet pages of hypertechnical licensing requirements, many of them unrelated to health and safety.

● In Tennessee, CR successfully strong-armed the legislature into repealing a law that took a tiny step toward balancing the profound incentives judges face to take children needlessly with a small incentive to think of better options.  CR’s tactics included a lawsuit that raises serious questions about how they chose the children who served as “named plaintiffs.”

            ● In Georgia, CR sought to undermine alternatives to full-scale child abuse investigations that have reduced entries into foster care and demonstrably improved child safety.  Indeed, the monitor for CR’s own settlement in Georgia declined to help CR in this effort.

            Also in Georgia, Mother Jones reports, the state did what Michigan did: "cut spending on child care and put the money into child protective services in the wake of a lawsuit against the state over the mistreatment of children in foster care."

● In Massachusetts, it appears that several of the “named plaintiffs” in CR’s McLawsuit were children who could have remained safely in their own homes had the right kinds of help been provided.  But the lawsuit said nothing about providing that help.

And now, Oregon

            The same is true in the Oregon suit.

            ● In the case of the Oregon children the suit calls Wyatt and Noah, there was no allegation that either child was abused. Rather, there was allegedly drug abuse in the home and the father was charged with domestic violence against the mother. In other words, the children were torn from their mother because she was, herself, a victim of domestic violence.  In New York, that would be illegal – because it is exceptionally harmful to children.

            It’s illegal because of a class-action lawsuit – done the right way.  (NCCPR’s Vice President was co-counsel for the plaintiffs.)

As a result, in New York City cases such as this are supposed to be handled by removing the abuser, not the children, and then giving the mother all the support she needs so she will never feel a need to turn to the abuser again.  (Of course, the city does not always live up to the settlement, but the system has improved significantly since implementation began.)

But does Marcia Lowry’s lawsuit call for stopping Oregon DHS from taking away children because their mothers have been beaten? Of course not!

            ● In the case of Kylie and Alec, the issue was the mother’s alleged neglect and substance abuse.  But DHS actually admits it took away the children “because DHS was unable to locate a substance abuse program for her.”

            So does the Oregon lawsuit’s list of remedies include demanding substance abuse treatment on demand so no children will ever again have to undergo what happened to Kylie and Alec for lack of drug treatment?  Of course not!

            ● A cascade of horrors for Naomi began when she was taken away because her father wouldn’t allow her to receive therapy for mental health problems.  If the description in the lawsuit Complaint is correct, there is no question she needed the therapy.  There also is no question that, even without the therapy, the state of Oregon put her in far more danger.  Indeed, were there a deliberate, calculated plot to traumatize this child, (and, for that matter, the other named plaintiffs) they plotters could not have done better than Oregon DHS did.

            And the father was not the only option.  Naomi asked to live with her mother in Idaho. The court refused.  When Naomi ran away and went to Idaho herself – to live with her mother – she was forced back to Oregon.

            So, does the lawsuit include demands that Oregon beef up Wraparound services, in which therapy and other help is brought directly into the home, and everyone is trained to engage with entire families - so that, in cases like this, parents would be far more likely to accept the help?  Of course not!

            ● And then there is the story of Norman, who was taken from his father.  Only in the last paragraph of the description of what happened to Norman does the lawsuit let us in on the fact that they are now hoping that, after Norman “ages out” of foster care at age 18, he can be placed with his mother.  Why wasn’t that ever considered before? The lawsuit doesn’t say. It does mention, however, that the mother had substance abuse and housing issues.

            So, does the lawsuit demand that Oregon address family housing problems instead of tearing apart families?  Of course not!


There is a far better way to sue a child welfare system. The Alabama lawsuit, R.C. v. Hornsby emphasized rebuilding the system to emphasize safe, proven programs to keep children together.  (The suit was brought by the Bazelon Center for Mental Health Law whose legal director is a member of NCCPR’s Board of Directors.)  Though there’s been backsliding since this New York Times story was written,  this more recent account, from the Arizona Daily Star makes clear that Alabama is still, relatively speaking a national leader in child welfare.

            You can get a good sense of the difference between innovative litigation that works and a Marcia Lowry McLawsuit just by comparing the “Statement of Principles” section of a typical McLawsuit to the comparable section of the Alabama suit.  You can do that here.

            And though Lowry’s Oregon suit mentions all sorts of other reports and even past lawsuits about that state, it omits the effort to bring the Alabama reforms to Oregon in the 1990s – an effort that failed largely for lack of an enforcement mechanism.  It’s all discussed in the epilogue to this excellent story from Oregon Public Broadcasting and the Salem Statesman Journal.

            So don’t let anyone tell you it’s not possible to use litigation to curb the needless removal of children from their families.  The Alabama suit and the New York City suit concerning domestic violence both show that you can.

Diversionary tactics

The whole Oregon lawsuit is written in a way that appears designed to steer people away from thinking in those terms – not that it takes much steering in Oregon, where, for example, the Oregonian has kept the issue of the state’s high rate-of-removal out of the discussion.

● Right off the bat the lawsuit describes children in Oregon foster care as “revictimized.”  In some cases, of course, it’s true.  But in others, children are not victimized until they are placed in foster care.

● In presenting a list of provisions of federal law Oregon allegedly violated, the lawsuit makes no mention of the requirement in federal law to make “reasonable efforts” to keep children out of foster care in the first place.  The Complaint mentions “reasonable efforts” only in the context of the need to “achieve permanency” after a child is in foster care. 

            ● Child welfare systems make terrible mistakes in all directions.  But while the complaint goes into great detail about the abuse suffered by children left in or returned to dangerous homes, it is vague about the circumstances in the homes of children who probably could have stayed in them with the right kinds of help.    

            The lawsuit also errs in claiming that the Oregon child welfare system is “underfunded.”  On the contrary, Oregon spends on child welfare at one of the highest rates in the country – a rate nearly 50 percent above the national average.

            Part of the reason for this is explained by the one useful purpose served by the entire lawsuit: It exposes the fact that Oregon’s practice of warehousing children in out-of-state institutions is even worse than we thought.  (See pages 57 to 59).  Ten Oregon children are warehoused at institutions run by a for-profit chain that’s so awful a financial analyst – yes, a financial analyst -- said that its very existence “makes the world a worse place…”

            But in child welfare, the worse the option, the more it costs.  These out of state institutions cost DHS anywhere from $275 to $803 per day per child.

            So no, Oregon child welfare isn’t underfunded. Oregon child welfare simply throws away money as it throws away children.

The local partner

            The one hope in all this comes from one of the local partners Oregon chose for this suit, Disability Rights Oregon.

            In the one and only news story I know of concerning this lawsuit that even mention’s Oregon’s high rate of removal, from the Oregon Capital Bureau, an attorney for Disability Rights Oregon at least shows DRO is aware of the problem, adding that his group sees the lawsuit as an “opportunity to transform” the foster care system.

            The problem is, in order to win a settlement that actually does this, DRO will have to fight not only the state, but also its own partner.

            The more likely result is a lose-lose situation for Oregon’s most vulnerable children.

If the lawsuit is thrown out of court, Oregon DHS will treat that the way Donald Trump treated the Mueller report –as “vindication” when it would be nothing of the sort.

            But if ABC wins or settles, expect decades of court hearings, 150-page monitoring reports that measure processes instead of outcomes, motions, counter-motions, and other pointless maneuvering, as the Oregon child welfare system gets bigger but no better. 

That’s best case.  Worst case, Oregon diverts funds from child abuse prevention family preservation and basic support for poor families in order to fund a worthless settlement.

            Marcia Lowry’s track record suggests she’s have no problem with that at all.

Thursday, April 18, 2019

Child welfare in New York City: Fieldston’s failure

Parents of a biracial 6th grader complain about discrimination at the Ethical Culture Fieldston Schools. The posh private school allegedly retaliates with a false allegation of child abuse. When the family sues, the school attacks the family in a mass email.

The school says everything it did was legal. But was it ethical?

 By Richard Wexler, NCCPR Executive Director* 

The Fieldston Middle School
The Fieldston School, in the Riverdale section of the Bronx, one of the Ethical Culture Fieldston Schools (ECFS), is one of those private schools that the New York City tabloids like to refer to as “posh” or “tony” or “ritzy.”  (The New York Times tends not to do this, probably because a lot of Times journalists send their children to Fieldston.) These adjectives tend to make alumni cringe. They also happen to be accurate. 

            I know this because I’m one of those alumni (class of 1972).  My relationship with the school has always been ambivalent.  While I was there, the school and I had a prolonged difference of opinion over which of us was underachieving.  But never in the nearly 47 years since I graduated have I been as ashamed of Fieldston than I am right now.  But not, perhaps, for the reason those who have read about the school lately may think.

            If the name of the school seems familiar it’s probably because in March students of color and their allies took over a building and locked administrators out.  The immediate cause was the failure of the administration to respond adequately to a racist video, but that was only the final straw.  Other concerns go far deeper (you can read about it all here).  The administration agreed to all of the student demands, and a geyser of conciliatory rhetoric has burst forth in emails to “the school community” from the administration, particularly Head of School Jessica Bagby.

            But months earlier, Fieldston did something far worse than the way it handled the racist video.  At least the video was initiated by a couple of students. The earlier incident involves actions of staff and administrators, including Bagby.  And this time Bagby’s rhetoric has rubbed salt into a family’s wounds.

            The family alleges that, in retaliation for their raising issues involving racial bias, Fieldston filed a false allegation of child abuse against them; causing enormous trauma for the child and his younger sibling.   Then, after the family sued, the school attacked the family in a mass email.

            The school denies any retaliation or racial bias.  It uses the same justifications authorities always use when families are harmed by false allegations, justifications that boil down to: We were just trying to keep children safe and anyone who wants to call us out doesn’t care about child safety.  In fact, though of course it wasn’t their intent, if anyone made children less safe it was a person or persons at the Ethical Culture Fieldston Schools.  All of the time, money and effort wasted on the false allegation initiated by someone at ECFS was, in effect, stolen from finding some other child in real danger.

            Unfortunately, it is not unusual for schools to use reports alleging child abuse as leverage during disputes with parents.

            But Fieldston styles itself as a cut above other schools, especially when it comes to ethics. “Ethical” after all, is the school’s first name.
Founder Felix Adler said the goal of the
Ethical Culture Fieldston Schools is
"to put it boldly, to train reformers."

            Fieldston is a school that prides itself on being a leader in “progressive” education. It is a school whose stated mission is to “inspire … ethical individuals who aim to make the world more humane and just.” It is a school whose founder, Felix Adler, declared that its mission is “to put it boldly, to train reformers.” Yet late in 2017, the Ethical Culture Fieldston Schools unleashed on one of its own students and his parents the full power of a system – child protective services – with almost no checks and balances, a system that regularly runs roughshod over due process and civil liberties, a system that is permeated with racial and class bias. 

At best, the reasons presented by administrators reflect a disturbing ignorance of how much harm can be done to children by a child abuse investigation.  At worst - and this is what the family alleges -- it was a deliberate act of racial discrimination and retaliation.

But Fieldston doesn’t just defend its behavior in this one case.  A school which just saw one of its buildings occupied because of its insensitivity to racism now offers enthusiastic endorsement of a massive system of reporting of families to child protective services  – a system so rife with racial and class bias that a recent study found that a majority of African-American children will be caught in its net at some point during their childhoods.  (And by the way, a system put in place with no scientific evidence of effectiveness.)

To what extent does that bias in child abuse reporting extend to Fieldston’s “grassy banks and wooded ways”? (That’s from the school song.)  One of the questions I posed in an email to Bagby was how many times during the 2017-2018 school year employees of ECFS called the state child abuse hotline – and the racial breakdown of the alleged victims.  The school did not reply.

But a school truly committed to progressive values, a school dedicated to training reformers, would be fighting to reform this system, not extolling it. 

           Imagine if a school that proclaims itself a champion of social justice allowed its security guards to stop-and-frisk a Black student without cause.  Then, in addition to defending the individual guard, the school proclaimed that stop-and-frisk is essential to public safety for the entire nation and any complaint about it risks jeopardizing this vital part of law enforcement.  That is analogous to Fieldston’s behavior in this case.

            Last month, a judge denied Fieldston’s motion to throw out the suit before trial.  The school has appealed.  After I contacted Bagby by email with a series of specific questions and a request to see any documents the school wanted to share, she passed my request on to the school’s lawyer.  He provided Fieldston’s brief for the school’s appeal.  But he said “it would not be appropriate for me to provide other details at this time.”

The case

            In the fall of 2017, Columbia University Professors Hillary Hallett and Chris Brown were looking forward to sending their son, whom I’ll call Adam (not his real name) to Fieldston.  Prof. Brown took a second job so the family could afford the $53,000 tuition.  Brown says that Adam, too, was “really excited about the opportunity to go there.” He’d done extra work and “invested a lot of hope and enthusiasm.”

            But that would change quickly.  Except as otherwise noted, all of the following are allegations from the lawsuit:

            The problems began shortly after Adam, who is biracial, enrolled in sixth grade. Adam was upset when another biracial student told him a white classmate he’d known before coming to Fieldston -- and thought of as a friend  -- had made racist comments. Adam asked his white friend what had happened.  In addition, Prof. Hallett complained to the school about practices she felt encouraged segregation.

            Then, in November 2017, the white child’s parents complained to the school about their son being questioned by Adam.

            Shortly after, Adam injured his arm while playing football during recess.  The injury was minor.  His parents did everything asked of them by their own pediatrician and by Fieldston, and Fieldston had full documentation for this.  Furthermore, the parents had signed forms allowing the school itself to obtain medical care for Adam if he never needed it and contact information for Adam’s doctors.

            But a few days later, someone at the school reported Adam’s parents to the New York State Child Abuse Hotline, alleging that the parents failed to properly respond to the injury and also that Adam had twice arrived at school hungry – notwithstanding the fact that the school provides breakfast to every student who wants it.  (Let me confess here and now:  There were days when I skipped breakfast before heading to Fieldston – and back then you could not get breakfast at the school. Nevertheless, my parents were never reported as alleged child abusers.)

            Three days after the call to the hotline, at 8:30 p.m., the family found at their door a caseworker from New York City’s Administration for Children’s Services (ACS).  The worker said ACS had received a report from someone at Fieldston. Adam was put through all the inherent trauma of a child abuse investigation.  He was left emotionally distraught; terrified that he would be taken from his parents.

The report was wrong

            Perhaps it was just coincidence that a report based on so little was phoned in to the hotline  But this much we know for sure: The report was wrong.
just days after the parents started complaining about things that were happening at the school.

            We know this because the ACS caseworker declared the case unfounded.  In New York you have to be demonstrably innocent for that to happen. 

In New York, as in every other state, a finding that abuse or neglect is “substantiated” (in New York the term is “indicated”) does not require a trial.  It does not require both sides to present evidence, and it does not require proof beyond a reasonable doubt.  It doesn’t even mean that the worker has to think it is slightly more likely than not that abuse occurred.

            In New York “indicated” means only that a caseworker believes that there is “some credible evidence” of abuse or neglect. Even if there is more evidence of innocence, the worker is supposed to check that “indicated” box.  But in this case – and, indeed, in more than 60 percent of cases investigated by ACS, there was not even “some credible evidence,” so the case was deemed unfounded.

Prof. Brown said in an interview that the family pediatrician was “horrified” that Fieldston had rushed to call the hotline.  “She could not understand why the school had not talked to her first.” 

            The only abuse suffered by Adam was the emotional abuse of the investigation, an investigation initiated needlessly and, the parents allege, maliciously, by the Ethical Culture Fieldston Schools.

The damage done 

            The ACS investigator interrogated Adam, and a younger sibling.  He physically examined them and photographed them.  The next day, the investigator showed up at Fieldston to interrogate Adam again.

            But first, according to the lawsuit, his Fieldston guidance counselor pulled him out of class to talk to him.  At age 12, Adam was old enough to understand what ACS can do.  He told the counselor he was terrified of being taken away from his parents. 

Initially that fear caused sleep disturbances.  Then, as the school year progressed Adam suffered from what his mother describes in an email as “a cascading series of psychosomatic symptoms at school.”  There were headaches and stomach aches.  He began seeing a therapist to help him cope.

            One day in January, 2018, Adam experienced chest pain at school – but he wouldn’t tell anyone at Fieldston – because, the suit says, he was afraid it would lead to “further retaliation against the family.”  The chest pains got worse, and by the time he got home they were so bad the family had to seek emergency medical treatment.

            He wasn’t the only one who was fearful. One day Adam had some slight swelling near his eyes because of a mosquito bite.  Concerned about further retaliation, Adam’s father, Prof. Brown, got a note from Adam’s pediatrician explaining what happened – and delivered it personally to an assistant principal.

            Later that day Adam’s science teacher notified his mother, Prof. Hallett, that Adam appeared upset.  She called the guidance counselor to ask her to let him speak to Adam to be sure he was o.k. But, the lawsuit says, the counselor would only let Adam talk to his mother on speakerphone – so the counselor could monitor the conservation.
            Through it all, Adam never knew who, exactly, had called the hotline. So he felt he could trust and confide in no one at Fieldston’s middle school.  Eventually, an agreement was reached that when he had a problem he would see the nurse or counselors at Fieldston Lower – the elementary school on the same campus.

            Repeatedly, the parents allege, they would ask for help so Adam could better cope with the stress caused by the false allegations and its effect on his schoolwork. They say they got none.  Says Prof. Hallett: “They never showed any interest in the welfare of a newly 12-year-old kid who was brand new to the school and navigating the pressures of just starting middle school.”  Prof. Brown says the school “just left him kind of dangling.”

            The parents think the school wanted to be rid of the family – and in that much, they have succeeded.

            But not before the family filed their lawsuit.

The school’s response

            It’s worth comparing the immediate response to that lawsuit to the response to the recent student protests.

            After the group called #StudentsOfColorMatter occupied a building and issued their demands, gained a ton of well-deserved support and generally created a p.r. nightmare for Fieldston, Bagby, the Head of School, went into full conciliation mode – praising the protestors and putting enormous emphasis on the need for civility.

            In one email to the entire “school community” – students, parents, faculty and alumni – she wrote about the need for “…eschewing within our own school community the sanctimony and mean-spiritedness of our current national discourse that resorts to attacks on individuals” and stressing the need to avoid branding anyone with “labels and reprisals from which they cannot recover.” 

            Compare that to the email Bagby sent to the same “school community” in late March, 2018, right after the family filed its lawsuit.  Bagby contented that the school was simply acting in accord with state law which makes educators “mandated reporters” of child abuse. 

But New York State law does not require even mandated reporters to report anything and everything.  It requires them to report only when they have “reasonable cause to suspect” abuse or neglect. 

Bagby then declares that the demonstrably racially biased system of mandatory reporting “is vital to the safety and security of students across the country.”  Again, to see the problem with this, substitute “stop-and-frisk” for “mandated reporting.”

But even with that, had Bagby simply claimed the school had no choice, was following the law, and supporting child safety she would have been wrong, but at least the tenor of the email would have been in keeping with her own later statements about civility.  But she didn’t stop there.  She wrote:
 While the family has now filed a lawsuit, you should be assured that our school's child safety policies will not be compromised. We are saddened that anyone in our community would try to undermine this important system with a baseless lawsuit that puts profiteering ahead of students' safety.

            So now, a 12-year-old boy gets to read that he and his parents are engaging in “profiteering” in an email to the entire “school community.”  He can read a similar statement from the school in a story about the case in the New York Post.

            That prompted the family to amend their lawsuit to add a claim for libel.  In its response Fieldston denies that the statement about “profiteering” is libelous under New York State law.  But my concern, as an alumnus of the Ethical Culture Fieldston Schools is not just whether the statement was legal. My concern is: Was it ethical?

           Even if a court rules that the statement was not libelous, it was still gratuitous, cruel and unworthy of an “ethical culture” school.

            The very first sentence of Fieldston’s appellate brief declares that “This case is an assault on the mandatory reporting system that protects children in New York against potential abuse and mistreatment.”  In fact, the suit is nothing more than an attempt to seek redress to the harm done to one child by one school’s alleged abuse of the system.

            But more disturbing to me is the fact that, over and over and over Fieldston’s brief doesn’t just defend but extols the “mandatory reporting system.”  Again, substitute “stop-and-frisk” and you can see the problem. 

            By the way, there is no actual scientific evidence that mandatory reporting improves child safety.  The laws were passed decades ago, with no study, in the midst of a wave of hysteria over child abuse.  As the National Research Council explained in 1998:

“Mandatory reporting requirements were adopted without evidence of their effectiveness; noreliable study has yet demonstrated their positive or negative effects on the health and well-being of children at risk of maltreatment, their parents and caregivers and service providers.”

So there is actually no scientific evidence in support of Bagby’s claim that the mandatory reporting system “is vital to the safety and security of students across the country.”

And if this system really makes children safe, how, exactly, is Adam safer now than he was before he enrolled at Fieldston?

“The impact on him is lasting,” says Prof. Brown. “And the impact on our family has been lasting.  It’s hard for me to imagine a white family being treated the same way.”

            Indeed, to the extent that anyone wound up jeopardizing safety here it was a person or persons at ECFS.  Caseworkers at ACS, like their counterparts in most of the country, constantly complain about being overloaded.  When there are high-profile tragedies, it’s almost always because of that overload.  False allegations divert workers from real child abuse in the same way false alarms divert firefighters from real fires.  

            So truly keeping children safe, truly allowing “this important system” to function well, requires that mandated reporters know when to report and when not to report. In New York, that means reporting when there is “reasonable cause to suspect” abuse or neglect.  I have seen nothing to indicate that this case qualifies.

The school’s defense on appeal

            Since Fieldston declined to provide any response beyond a legal brief, I know only its response concerning the law.  Fieldston’s legal defense boils down to this:

            Yes, state law says you can’t make a malicious false report of child abuse. But state law also protects the identity of reporters.  So even if a report was made maliciously, unless you happen to know who did it, there’s not a damn thing you can do about it!  In this case, the family argues that a number of school officials share responsibility. Fieldston says only the person who made the actual phone call is responsible, the family doesn’t know who that is – so tough luck. (And, of course, they say, this Catch-22 is vital to keep children safe.)

            In fact, it is for just this reason that, for decades, NCCPR has proposed an exception to reporter confidentiality when a family can persuade a judge that a report was, in fact, malicious.  One would think a school committed to civil liberties and racial justice would embrace such a proposal.

            But again, to this alumnus even if Fieldston is legally right, that’s not good enough.  The question is: Is Fieldston ethically right?

            Asked what he thinks of Fieldston now, Prof. Brown quotes one of the students who took part in the recent protests: “The school is not the place it pretends to be.”

*-I write all of the posts on this blog, but in this case, I thought a byline was appropriate

Monday, April 15, 2019

News and commentary round-up, week ending April 15, 2019

For a long time, I’ve been sending a weekly round-up of news and commentary making the case for family preservation to advocates across the country.  Beginning this week, I’m posting the round-up here for everyone to see.

● Dorothy Roberts, professor of law, sociology and civil rights at the University of Pennsylvania (and a member of NCCPR’s Board of Directors) has an article in Harvard Law Review examining the dangers of predictive analytics in child welfare and criminal justice.  The article reviews Prof. Virginia Eubanks’ book, Automating Inequality.  “In this Review,” Prof. Roberts writes, “I expand Eubanks’s focus on state welfare programs to include a broader range of systems, with particular attention to the criminal justice system, and Eubanks’s focus on poverty management to include white supremacy.” Read the article here.

● The Chronicle of Social Change looks at the work of Prof. Martin Guggenheim, co-director of the New York University School of Law Family Defense Clinic, the father of the family defense movement (and the President of NCCPR).

● Last week on this Blog I discussed an appalling case in Arizona. A lot of the excellent reporting on the case was made possible by the fact that the initial court hearing in the case was open to the press and the public.  Now, a different judge has kicked the reporter out. Here’s her follow-up story.

● Gothamist reports on a New York City Council hearing at which the city’s Administration for Children’s Services came under fire for harassing families when parents smoke marijuana.  (Poor families, that is. Affluent parents can even brag about smoking pot without fear of reprisal from child protective services.)

● In the Chronicle of Social Change Vivek Sankaran has a column called “While We Celebrate [adoptions] Some Children Grieve.” He writes: “…[B]efore courts take the dramatic step of permanently ending a child’s relationship with their birth family, they should ensure that the decision makes sense for the specific child before them. At a minimum, this must include hearing the child’s voice, and considering other alternatives that might give the child a permanent home while also preserving important relationships.”

● And finally, a rerun of sorts.  The Pulitzer Prize for editorial writing was awarded to Brent Staples of The New York Times for a body of work that included this editorial condemning what can best be called “crack baby” journalism.  Unfortunately, at almost exactly the same moment that brilliant editorial was published, the Orange County Register was reviving this discredited genre, something I discussed in WitnessLA  Perhaps the Pulitzer will help drive home the message to the Register and others.

Wednesday, April 3, 2019

Child abuse “fatality review”: Rearranging the file cabinets on the Titanic

A government agency review of a child abuse death in Pennsylvania profanes the memory of the victim – Grace Packer – or as she always should have been known, Susan Hunsicker

She was born Susan Hunsicker.
When she died, at age 14, she was Grace Packer.
Child welfare systems, and a lot of reporters who cover them, put a lot of faith in the concept of child abuse “fatality reviews.”  Get experts to look at what went wrong, the theory goes, and we’ll learn the lessons we need to stop these tragedies from ever happening again.

Journalists vent much outrage at the lack of such reviews and/or the failure to make them public – and in fact, if you’re going to do them, they should be public. But too much faith is put in “fatality reviews” as a tool for systemic reform.

That’s because the whole exercise is based on two false premises:

● First, it assumes that broad, general lessons can be learned from the most extreme, most aberrant cases.  In fact, a process of random case review would be vastly more valuable, since you’d be more likely to find out what typically goes wrong. Such a process also would be a constant reminder that the errors go in all directions, with some children left in dangerous homes even as many others are taken from homes that are safe, of could be made safe, with the right kinds of help.

● Second, it assumes that reviews are done by people with the same professional experience, the same outlook and the same general mindset as the people who screwed up in the first place will produce get fresh, useful insight – instead of a collection of boilerplate, blather and excuses.

The failure of fatality review is most glaring when the agency is, in effect, investigating itself because the death occurred in a foster or adoptive home.

Case in point: A fatality review that actually profanes the memory of the child who died, a 14-year-old who was born Susan Hunsicker, but died as Grace Packer.

The facts of the case

When Susan Hunsicker of Norristown, Pa., and her brother were taken from their parents, Rose and Rodney Hunsicker, the ostensible reason was that her parents were not able to protect the children from abuse by others. 

Apparently based on the assumption that they could do a better job of this, a county child protective services agency (or as they’re usually called in Pennsylvania, Children and Youth Services) placed the child with a foster mother who helped her husband rape the girl.  After the first rapist was convicted, she hooked up with a boyfriend whom she helped rape the girl again - and torture her, and murder her.

If the horrible facts sound familiar, but the name does not, that’s because, as I noted earlier, by the time she was raped, tortured and murdered her name was no longer Susan Hunsicker. It was Grace Packer.  Her foster mother, Sara Packer, had been allowed to adopt her and change her name.

There are two salient facts about Sara Packer. 1. She had a penchant for bringing child rapists into the   2. She worked for the private foster care agency that approved her as a foster parent – and placed Susan and a sibling in her home.

There is one salient fact about Rose and Rodney Hunsicker: They almost certainly could have raised their daughter safely with some help.  It can be said with absolute certainly they’d have done better than the system that took their children away from them.

As the Philadelphia Inquirer reported in 2017:

“[Their lawyer David Tornetta] said he came to know the Hunsickers as a loving couple who were unemployed but could have become better parents with some help. … "’I can't imagine what that young child went through," Tornetta said. "I guarantee you if that child had been in Rose and Rodney's care, it wouldn't have been anything like this. Nothing, nothing.

Tornetta told WHP-TV the parents jumped through all the hoops thrown in their path by child protective services. 

But it didn’t matter.  The system wanted Sara Packer to have these children, and that’s what was going to happen.  So the Hunsickers’ parental rights were terminated.

How this affects the fatality review

As a result of all this, anyone who reviews the case has strong incentives to willfully blind themselves to the real issues.  That is what happened in the Susan Hunsicker fatality review. (Perhaps we can restore some of the dignity stolen from her by the review by at least calling her by her rightful name.) 

The format of the document is odd – in effect, two reviews in one: one review done by counties involved in the case, the second done by the state, which simultaneously responds to the county review. Nevertheless, the report is remarkably revealing – but not in the way its authors intended.

The report reveals a system mired in minutiae and buck passing.  Over and over one reads recommendations that boil down to: Counties: You should do this. State response: We’re already doing it. If you don’t want to face the real issues, you point fingers at each other.

The report is, almost literally, a case of rearranging the file cabinets on the Titanic.  At one point it  
reveals a system whose idea of reform is “Establishing protocols regarding file organization throughout all counties …” The state’s response to another recommendation: “[T]he Resources and Cross-System workgroup of the PA Child Welfare Council will be reviewing this matter.”

Wow. Don’t you feel better already?

The recommendations themselves usually amount to little more than the equivalent of cutting and pasting from some manual somewhere about best practices. Were the circumstances not so tragic, the report would read like black comedy – something that might turn up in an episode of The Office.

Worst of all, of course, everyone overlooked the elephant in the room: Susan Hunsicker never should have been taken from her own home.  As long as CPS agencies don’t understand that children such as Susan Hunsicker can and should remain safely in their own homes with the right kinds of help, these tragedies will happen over and over.

“Misinformation … reported as truth”

It is sad but unsurprising that the reviewers gladly talked to caseworkers and supervisors but, apparently, never spoke to speak to Susan’s birth parents.  Were they too afraid of what they would learn?  Such an interview would seem particularly useful in light of one of the few findings from the county report that is useful:  “Reports provided to Lehigh County [by the private agency overseeing Susan’s foster care] contained many inaccuracies including wrong dates, and this misinformation was then reported as truth.”

Did it not occur to anyone to ask how much more misinformation has been reported as truth in this case – particularly about why Susan was taken away in the first place?  How many more children are trapped needlessly in foster care because of “misinformation … reported as truth”?

Making matters worse, the counties, in their report, have the gall to whine about how “overwhelmed” they are.  But what’s overwhelming them is the deluge of false allegations, trivial cases and cases in which poverty is confused with “neglect.”

Recommendations that would make things worse

Some of the recommendations made by the counties in their report would make this worse.  They suggest toughening enforcement of penalties for “mandated reporters” of child abuse who fail to report anything and everything.  That will only further scare them into further overloading the system with false reports.  That will both increase the chances of more children needlessly removed from their homes – like Susan Hunsicker – and more children in real danger being overlooked.

Another recommendation seems to suggest in effect, that agencies treat enough false reports as, in itself, evidence of abuse or neglect. That would encourage more malicious reports, as in: “If I just call often enough, they’ll have to substantiate it!” Still another recommendation would needlessly slow down reunification.

It’s the same idiocy that led to passage of similar laws in the wake of the revelations of abuse by another Pennsylvania foster parent – Jerry Sandusky. 

Then, having shown no vision, no insight into their own failings and no creativity about solutions, the county report says: Everything will be fine if you just give us more money! But Pennsylvania already spends on child welfare at the ninth highest rate in America  even when rates of child poverty are factored in.

When the children are inconvenient – institutionalize ‘em!

But it gets worse still.

Having ignored the urgent need to keep children out of the system entirely, they actually recommend making it easier to use the very worst option for children – institutionalizing them. (Of course, they couldn’t know that this recommendation would become public just weeks after still another institution was exposed as a hellhole -- Pennsylvania’s own Glen Mills.)

But even when they’re not Glen Mills, Institutions don’t work --  except for CPS agencies. They can use institutions to get youth like Susan Hunsicker, whose problems the system did so much to cause in the first place -- off their hands and make them someone else’s problem.

The William Barr approach to full disclosure

A page from the report indicates how little
the State of Pennsylvania really wants us to know.

And finally, it’s a good thing there have been detailed news accounts describing what happened in this case, because it’s impossible to figure out from the public version of this report. That part of the report has been redacted into meaninglessness.  In fact, trying to figure out what happened to Susan Hunsicker based on this report is like trying to understand the Mueller Report based on William Barr’s summary.

Laws such as the Child Abuse Prevention and Treatment Act put a lot of faith in fatality reviews. So does the execrable report from the so-called Commission to Eliminate Child Abuse and Neglect Fatalities.

But, as the report on the death of Susan Hunsicker makes clear, fatality review can be fatally flawed.