A new report is a frightening assault on the minimal due process protections meant to stop child welfare agencies from needlessly traumatizing children.
In yesterday’s post to this blog, I described how the due process protections afforded to people who are listed on Pennsylvania’s statewide blacklist of alleged child abusers or in county child welfare agency records range from minimal to none. I also discussed how State Auditor Eugene DePasquale launched an attack on the minimal due process protections that exist that was rife with inaccuracy, stunning for its ignorance and even veered toward conspiracy theory territory.
Well, now it looks like DePasquale has an ally – from part of the latter-day “child saver”* wing of the child welfare research community. I'm sure they have the best of intentions. But they’ve issued a report that amounts to an assault on due process. The extremism in the document manifests itself in many ways, including a flow chart from the report itself. This is the lower left quadrant of the chart:
Can you spot the problem? I’ll discuss it below, but first, let’s look at the report.
The report was commissioned by the Center for Rural Pennsylvania, an arm of the Pennsylvania Legislature. They hired a team affiliated with the Penn State “Child Maltreatment Solutions Network.” Though the report originally was intended to look only at commercial sexual exploitation of children, the authors kept expanding their own mandate, first to all sexual abuse cases and ultimately to broad, sweeping conclusions about the entire system – even though the case sample they examined involved only sexual abuse cases.
Like DePasquale, the report’s authors express alarm at what they imply is an unusually high rate at which some blacklist decisions are overturned. They’re also alarmed by the fact that, if a report turns out to be false, the state is not allowed to keep the report forever and use it against a family anyway.
The report acknowledges that blacklist decisions are overturned, by the authors’ own estimate, only 19 percent of the time. That’s because most of those accused lack the knowledge and/or the resources or both to do anything but lodge a written appeal. That appeal goes to the same division of the same state agency that runs the state’s child abuse hotline. At that stage, in 2018 the number of times a child welfare agency decision was overturned was exactly zero. Among those who do have the resources and take it to a real hearing before an independent tribunal, the Board of Hearings and Appeals, about 70 percent are overturned. (DePasquale mistakenly claimed it was 96 percent.)
In fact, the 70 percent rate-of-reversal is roughly in keeping with at least three other states. It also makes perfect sense, given the sloppy, one-sided nature of many child abuse investigations. The Penn State report itself devotes page after page to condemning the poor quality of these investigations. (DePasquale raised similar concerns.)
The report even admits at one point that “the rate at which cases indicated by [county children and youth services agencies] are overturned on appeal is high, which may both affect and reflect the concerns raised in this research pertaining to the quality, scope, and documentation of investigations.” [Emphasis added.]
Yet the Penn State report warns darkly that if decisions by county CYS agencies “are frequently overturned on appeal, this could provide a disincentive to making a finding of indicated on a CYS case.” This reflects a remarkably dim view of frontline child abuse investigators. It suggests they would rather let child abusers run free than actually work improve their investigations.
Taking out the trash
Under Pennsylvania law, if the Board of Hearings and Appeals or the courts overturn a listing in the registry, or if the county CYS agency finds it unfounded in the first place, the state must expunge the record so the false allegation can’t be used against a family in the future.
But the presumption of guilt in child welfare is so strong that many jurisdictions want to keep false reports on the theory that, if there are enough of them, then they can’t be false. According to Marc Cherna who runs the Allegheny County system, the one that leads the nation in weaponizing false allegations and other junk information against families: “A lot of times, where there’s smoke there’s fire.”
This is an open invitation for anyone who wants to harass a family – an ex-spouse, an angry neighbor, a school district that wants to collect lunch money, or even an upset dentist – to simply call in more and more reports. But also, in child welfare, where there’s smoke, there’s often just an overwhelmed inexperienced caseworker blowing smoke.
But in the atmosphere of hysteria that has pervaded Pennsylvania since the scandal over former Penn State football coach, former foster parent and former group home operator Jerry Sandusky, the state now gives permission to counties to keep junk data about families forever. According to the authors of the Penn State report, even that is not enough. They want to require it, and they want the state to keep all of its junk data as well.
Their excuse for this recommendation is instructive, but not in the way they had in mind. First they write that expungement
…may result in wrongly-accused persons being repeatedly subjected to investigation for allegations that were already investigated when the investigation has been expunged and the exoneration details are no longer available.
Aside from the fact that no one could read this report and believe that the authors give a damn about “wrongly-accused persons” (as is discussed below, it’s not even clear they think such persons exist) they contradict this argument in the very next sentence:
At the same time, expungement may also allow serial perpetrators of child sexual abuse to go undetected. That is, expungement of unfounded allegations disallows consideration of the accumulation of allegations, patterns, and reports that are often critical to exposing serial perpetrators of child sexual abuse.
In other words, “Where there’s smoke …” If they believe their own second sentence then there’s no way a pile of unfounded reports clears anyone – it just makes them more suspect.
Indeed, this mindset is confirmed, accidentally, by a spokeswoman for the state Department of Human Services – which loves the prospect of being able to keep files on the innocent forever. She told the Daily Item:
“Prior abuse reports, regardless of substantiation, are a strong indicator of risk of future abuse … Counties should be aware of all prior incidents, including unfounded or invalid reports, when investigating a new report.”
And, of course there is a simple way to solve the problem of someone who is innocent not having a record of a false allegation: Send a copy of the record, minus anything that genuinely violates privacy, to the accused, so they can keep it and show it to the caseworker the next time that disgruntled neighbor, ex-spouse, dentist or school district demanding lunch money files a false report, or the next time a well-meaning reporter is simply mistaken.
The report’s recommendation in this area appears under the header “Stop deleting data.” But a key principle in any use of data is “garbage in, garbage out.” Expunging false reports is not deleting data. It’s taking out the trash.
Another assault on due process
You can’t convict someone of murdering a child without proof beyond a reasonable doubt. But in most states you can tear a child from a loving home and consign her or him to the chaos of foster care, indefinitely, using the lowest standard of proof in American jurisprudence – “preponderance of the evidence.” That means you were able to convince a judge that it is slightly more likely than not that the allegations are true and foster care is necessary. It’s the same standard used to decide which insurance company pays for a fender-bender.
That’s part of the reason it’s so easy to do so much harm to children. First, confuse family poverty with neglect, then take away the child (in every state workers can do that on their own authority or ask law enforcement to do it for them). Then, after-the-fact, go to court for a hearing – usually a secret hearing - where the family probably has either no lawyer or someone they just met five minutes before the hearing. The state has had plenty of time to prepare its case – and it barely has to “prove” it at all.
In theory, Pennsylvania is a little different. In Pennsylvania, CYS agencies eventually – though not immediately - have to meet the middle standard of proof, known as “clear and convincing.” That’s still lower than “beyond a reasonable doubt” but, theoretically, higher than “preponderance of the evidence.”
In contrast, all it takes to blacklist the accused is a caseworker’s conclusion – with no hearing or impartial fact finding beforehand – using the preponderance standard.
So what does the Penn State report say? While never explicitly calling for lowering the standard for holding a child in foster care, it’s clear where the authors come down. They write:
This creates a scenario in which it is known that a child is at risk of harm but no action to protect the child can be taken without the consent of the parent, who may themselves be the identified perpetrator.
But that is inaccurate.
First of all, in Pennsylvania a child can, in fact, be in foster care for up to 13 days or more before this higher standard ever kicks in. That happens – in theory -- at a later hearing to determine if the child needs to stay in foster care.
But more important, the whole point of a court hearing is to find out if the child actually is “at risk of harm” and whether the parent is, in fact, the perpetrator. If a caseworker’s guess based on preponderance of the evidence were enough we could just abolish the entire court system.
The Penn State report’s framing also flunks the balance of harms test. It fails to acknowledge the enormous harm of intervention itself. It ignores the evidence that in typical cases children do better in their own homes even than comparably-maltreated children placed in foster care. It ignores the high rates of abuse in foster care itself. One should, indeed, have clear and convincing evidence before putting a child at risk harm by needless placement in foster care.
And finally: The “clear and convincing” standard does not stop Pennsylvania from taking away children at a rate above the national average. And it doesn’t stop Philadelphia from taking away children at the highest rate among America’s largest cities.
So yes, there’s a problem with the “clear and convincing” standard in Pennsylvania law: Judges keep ignoring it.
The bias that permeates the report
I noted above that it’s not clear the authors believe there’s really any such thing as a false report. Indeed, the overall message conveyed in the report is: If you’re accused you’re guilty until proven innocent – and no one is really innocent.
That’s based on, among other things, the flow chart I mentioned at the top of this post. The flow chart is misleading on one count and flat wrong on another. Take another look:
It is misleading in that it suggests, as does the report narrative, that those accused of child abuse have a wondrous array of options before them and chance after chance to prove their innocence.
In fact, that’s only true if they’re rich, can hire great lawyers, and convince court after court to hear their appeals. In the real world, there’s the BHA – and often, not even that. (And remember, in most neglect cases there is no right to appeal at all.)
The error of fact appears over and over in the lower left quadrant of the chart. That’s where, time after time after time the report lists a tribunal’s options as either “ruling in favor of CYS” or “ruling in favor of perpetrator.” [Emphasis in original.]
The problem, of course, is that if the tribunal says the allegation was false, then the accused is not a perpetrator. To claim that ruling that the state could not meet the bare minimum required to “indicate” an abuse allegation equals “ruling in favor of perpetrator” is like saying “the jury found the murderer not guilty.”
The fact that a document purporting to meet academic standards includes this mistake, over and over and over, and no one apparently noticed, speaks volumes about the mindset of the research team. Indeed, in reading the report, I kept thinking of something said by a prosecutor who had falsely accused large numbers of parents as part of the mass molestation hysteria in the 1980s. Said the prosecutor: “I am sick to death of things like the presumption of innocence.”
Beyond the flow chart
The whole report has a tone reminiscent of the worst excesses of that era, the time of cases like the McMartin Preschool, allegations of mass child abuse by Satanic cults, and so on.
Particularly frightening is a section concerning non-offending parents in cases of alleged sexual abuse, including parents who were unaware of any alleged abuse. The report contends that any such parent (usually the mother) who does not immediately believe the allegations, turn against the alleged offender (usually the father) and do whatever is demanded by child protective services is herself a child abuser.
According to the report, agreeing to keep the alleged abuser away while the case is being investigated is not enough. In classic 1984 style, you must believe the charges, and the belief must be immediate, absolute and unwavering. Because, apparently, those same caseworkers who do those slipshod investigations can’t ever be wrong when they accuse someone of sexual abuse.
I know of no studies documenting how many families are destroyed when a parent either accepted these demands or rejected them – and it later turned out the allegation was false. But having been around during the McMartin-era hysteria I can say that, anecdotally, such cases arose over and over. Children were not only taken from both parents, but loving relatives were denied custody if they did not convince authorities that they believed the charges.
The justification for this, according to the report: If a parent is not an instant true believer ‘it is possible” that parent may “[pressure] the child to recant or deny the abuse allegations.”
But, to put it as they might, it could be that this is only to be expected when the organization doing the research was born out of a quest to burnish an institution’s image.
The Penn State Child Maltreatment Solutions Network should really be called the Penn State Penance Institute.
The Network was a public relations tactic; part of Penn State’s effort to rehabilitate its image after the Sandusky scandal. But for the p.r. strategy to work, Penn State has to show that it’s tougher than anyone on child abuse. That leaves little room for nuance or for recognizing the need to balance the harm that may have been committed buy the alleged perpetrator against the harm done to children by needless intervention.
There is plenty in the Penn State report to suggest that the authors have a genuine passion for easing the plight of abused children. But there is nothing in it to suggest the ability to keep biases in check that is needed for reliable scholarship.
*-In the 19th Century, advocates for tearing apart the families of impoverished immigrants proudly called themselves “child savers.” They left a legacy of bigotry that permeates today’s system.