Thursday, May 28, 2020

Here’s the thing about Elizabeth Bartholet’s attack on homeschooling: It’s not about homeschooling

It’s just another attempt to expand the child welfare surveillance state and take away far more children.

            Fresh from suggesting that thousands of Americans who choose to homeschool their children are, at best, Bible-thumping ignoramuses and at worst might be secret torturers of children, Prof. Elizabeth Bartholet of Harvard Law School and several co-authors have written a column for the Chronicle of Social Change complaining that their feelings have been hurt.
            The only examples they cite are a couple of tweets from prominent conservative public officials.  They do not actually link to them, as I have done above – perhaps because they are considerably less vicious than the authors of the Chronicle column suggest. 

The tweets criticize a law review article Bartholet wrote condemning homeschooling, and a subsequent story in Harvard Magazine.  They were not personal attacks. By the standards of Twitter, they are almost genteel.  Yes, Mike Pompeo, in his personal Twitter account, called Bartholet a “radical leftist scholar.” But the only people who should be offended by that are we real leftists who know Bartholet has not earned such an accolade.

            Contrary to the claim by Bartholet and her coauthors, I can find no call to “shut down” the debate over homeschooling. Rather, they have joined it.          

          Bartholet et. al. claim that this “bullying” is why they’ve had no success pushing an agenda so extreme it includes a near total ban on homeschooling. Their only evidence for this is a link to a Chronicle story in which a then new (and now former) director of the Iowa Department of Human Services respectfully disagrees with the idea that homeschooling was at the root of some horror story cases in that state.  (He singled out a different scapegoat: adoption. That, also, is wrong.)  Presumably, Bartholet and her co-authors deem their approach so pristine in its perfection that it could not possibly be failing on its merits.

In fact the bulk of the criticism Bartholet has received has come from other scholars and from happy, successful graduates of homeschools – including some who went on to Harvard.   Some of them are hurt that their families have been subjected to Bartholet’s broad-brush insults.

            They are right to be offended.  Yes, Bartholet & Co. offer the usual token disclaimers: many homeschoolers do a great job, “none of us advocate [sic] an absolute ban on homeschooling,” etc.  But that is belied by Bartholet’s own recommendation in the law review article.  It comes under the heading: “General Presumption Against Homeschooling with Burden on Parents to Justify Exceptions.” And even when parents are granted an exception, Bartholet writes, their children “should still be required to attend some courses and other programs at school…”

An extreme agenda

            The list of publications on Bartholet’s Harvard website include no previous work I can find on education policy, and she does not claim it as an “area of interest” in her biography. So why the sudden interest in homeschooling?  I think it’s because Bartholet’s critique of homeschooling isn’t really about homeschooling, or education in general. It’s about surveillance.  Because that's how she sincerely, and wrongly, thinks children are best protected.

            That’s not just my word – it’s hers. In her book, Nobody’s Children (pp. 170,171), Bartholet proposes that every family in America with a young child be required to let in a government-approved “home visitor” to inspect their home at regular intervals from the child’s birth until school age. The visitors would be required to report to authorities anything they considered a threat to a child’s safety or “well-being.”  Bartholet is explicit in recommending this for purposes of “surveillance.”

            As for the number of children Bartholet wants torn from their families, in her book she writes that they should be removed in cases of “serious” abuse and neglect.  And she writes that “Estimates indicate that more than three million children a year are subjected to serious forms of abuse and neglect.” (p. 61).

Bartholet’s critique of homeschooling is just the latest target-of-convenience in a long line of attacks on anything that might undermine creation of a massive child welfare surveillance state and the mass confiscation of children from their parents.  She has exploited horror stories to attack Intensive Family Preservation Services, kinship foster care and an alternative to full-scale child abuse investigations known as differential response. She ignores a mass of research showing that, in typical child welfare cases, all of these options (and sometimes even doing far less) are better for children’s well-being – and safer -- than foster care. Bartholet also is a leader of the movement that denies the existence of racial bias in child welfare.

An even more extreme agenda

            One of her Chronicle co-authors, James Dwyer, is even more extreme, so extreme that at times it blinds him to the real dangers facing children – even COVID-19.

            In 2011, he called for the massive forced relocation of poor families. The penalty for not uprooting themselves and their children from “terrible” inner city neighborhoods and exiling themselves – if necessary to small towns and rural areas: government confiscation of the children.

Dwyer blithely declares that most poor parents who live in “terrible place[s]” so do by choice, not because it’s all they can afford.  Most of the rest, he says, made the irresponsible choice to have children – “or to risk creating a child by having sex, despite knowing the child would live in a terrible place…” And besides, he writes, “a relatively high percentage of adults who live in the worst neighborhoods are marginal to begin with…”

            More recently, Dwyer suggested that child abuse in the home is so rampant that schools should not have closed to avoid the spread of coronavirus.  He says “the shutdown decision arguably amounted to a prioritizing of the welfare of certain adults over the welfare of children."  By this he means that children appear less likely to get coronavirus or, he claims, to transmit it.

            What is unclear is which adults he means.  We do know that the research on the extent to which children transmit coronavirus is mixed.  We also know that in New York City alone 63 public school employees died of coronavirus before schools there were shut down.  Presumably some of them left children behind – some of them might even have been good parents.  And Dwyer makes no reference to a COVID-related disease that does, indeed, attack children – and might have attacked many more had schools not been closed.

A failed model

            The problem with the surveillance state model is that it devastates the psychological well-being of millions of children subjected to traumatic child abuse investigations (more than half of African-American children will endure such an investigation), it increases the risk that children will be consigned needlessly to the chaos of foster care – and it doesn’t curb child abuse.  That’s because the horror stories in which Bartholet revels are a tiny fraction of the millions of reports alleging child abuse or neglect.

            As I’ve noted before, 91 percent of calls to state child abuse hotlines are either so absurd they’re screened out or they turn out to be false. Another six percent involve neglect, which often means poverty.  And that’s why the surveillance state model doesn’t work.

            Bartholet et. al. want all children under the constant gaze of “mandated reporters” of child abuse. But the mandatory reporting regime was put in place with no studies beforehand to see if it would work.  Recent research confirms that, in fact, it backfires, driving families away from seeking help and overloading child protective services agencies so they have less time to find children in real danger.

            Still another problem with the child welfare surveillance state was highlighted by Bartholet herself – well, sort of.

From the moment a child protective services investigator shows up at the door, families are almost entirely at their mercy.  In most of the country, there is no meaningful due process. There is no federally guaranteed right to counsel, and in most places no effective counsel.  The standard of proof is almost non-existent, judges are under enormous pressure to rubber-stamp CPS agencies and most court hearings and records are secret. 

            Why is that a problem?  As Elizabeth Bartholet so aptly put it: “I think it’s always dangerous to put powerful people in charge of the powerless, and to give the powerful ones total authority.” 

Oh, wait, never mind. Bartholet was speaking of parents, not the government.

Toward a real dialogue

          Dwyer and Bartholet have something else in common: convening gatherings that are limited almost exclusively to the like-minded.  When Bartholet planned her latest, an invitation-only "summit" on homeschooling (now postponed), the speakers were a who's-who of homeschooling opponents. It was less a summit than a “safe space” where they could all get together and bemoan their shared belief that homeschoolers are closed-minded.

            But perhaps she’s changed her mind. I was happy to read that what Bartholet and her coauthors really want is “a civil, data-driven discussion about the advantages and pitfalls of homeschooling and how best to ensure the safe education of all children.” 

            I assume this means Bartholet will use the pandemic-induced pause to change her plans and convene a conference with equal representation and equal time for all sides, and neutral moderators to guide a constructive dialogue.  And I assume she wants all sides to share equally in the planning process.

            Perhaps she can even get the Home School Legal Defense Association to co-chair it.

Tuesday, May 26, 2020

NCCPR news and commentary round-up, week ending May 26, 2020

● This Blog broke some news last week, when we disclosed that Washington State is using an office building for what amounts to a holding pen for foster youth who tested positive for COVID-19. The Chronicle of Social Change followed up with more grim details: The facility reportedly "has no laundry facilities, no full kitchen, no full bathrooms." The youth are sleeping on cots and sleeping bags in the building basement, which had been used for supervised visits. The blog post is here, and includes a link to the Chronicle story.

In other coronavirus–related news:

● The New York City online news site The City reports on the hardships inflicted on children by private child welfare agencies failing to arrange in-person visits. Vice News has a story that looks at the problem across the country.  And Prof. Joanna Woolman, director of the Institute to Transform Child Protection at Mitchell Hamline School of Law, highlights the need for in-person visits in this letter to the Minneapolis Star Tribune (scroll to the sixth letter down).

● The American Bar Association held a webinar on the value of high-quality family defense – the model that has helped New York City significantly reduce the use of foster care with no compromise of safety.  But the discussion actually was broader than that, offering perspectives on child welfare that are rarely heard.  All of the speakers were outstanding, but since few people are likely to watch it all, I’ve cued the video to the presentation that may be most useful for a general audience.  It’s from Prof. Tricia Stephens of the Silberman School of Social Work at Hunter College: 

● Andrew Brown of the Texas Public Policy Foundation writes in The Washington Examiner that “As the economic downturn ripples across the country and compounds the financial struggles of families that are already at-risk, states should look closely at reforming child welfare policies and practices that improperly confuse poverty with neglect.”

● Sandra Gasca-Gonzalez, a vice president at the Annie E. Casey Foundation writes in Youth Today that we should “boldly reimagine” the system to strengthen families. Actually, that’s not particularly bold.  But in recent years, Casey seemed less interested in keeping kids out of the system entirely – as opposed to promoting less use of institutions and more use of kinship foster care.  Perhaps this signals a change for the better under the Foundation’s relatively new executive director, Lisa Hamilton.

In other news:

I have a column in Youth Today about the addition of the Homebuilders Intensive Family Preservation Services program to the short list of those that can be funded under the federal Family First Prevention Services Act. This makes that law potentially far more valuable.  And the fact that Homebuilders is one of the few programs to meet the almost impossibly high criteria for funding under the Act is one more reason not to trust the child welfare establishment that waged a decades-long smear campaign against the program. 

● The Family First Act may have shown surprising value in another respect. I’ve argued that its curbs on paying to institutionalize children were far too minimal to make much difference. But one institution says those curbs are forcing it to close. I’m not going to link to the story because the story was little more than a press release for the institution bemoaning its fate.  But any time one of America’s latter-day orphanages closes, it’s a small reason to celebrate.

● And there’s still more opposition to bringing “sugar frosted foster care” to New York State. Here’s a statement from Prof. Jane Spinak of Columbia University Law School.

Friday, May 22, 2020

Washington State warehousing COVID-19 positive foster youth in makeshift institution

This office building is being used by the Washington State
Department of Children, Youth and Families to warehouse
four foster youth who have tested positive for COVID-19.
(Photo: Google Street View)

UPDATE, MAY 23: The Chronicle of Social Change has grim new details: Family defender S. Annie Chung told the Chronicle that the office building "has no laundry facilities, no full kitchen, no full bathrooms." The youth are sleeping on cots and sleeping bags in the building basement, which had been used for supervised vists.

   Four Washington State foster youth who tested positive for COVID-19 were yanked out of their placements and institutionalized in a makeshift shelter, apparently in a child welfare agency office building, the NCCPR Child Welfare Blog has learned.  Like all Washington State foster children, they are not allowed in-person visits with their families.

            It happened just days after the Washington State Department of Children, Youth and Families said such facilities were merely being contemplated.

            Word of the plans leaked out, via a job posting on May 8. Three days later, DCYF issued a “clarification”, declaring that the sites mentioned in the job posting were merely “potential locations in the community where we could house children in our legal care and authority who’ve tested positive for COVID-19 in the event a placement home was not available.”  

But things moved quickly from consideration to reality.  In response to emailed questions, DCYF Communications Director Debra Johnson confirmed to NCCPR that, as of May 21, four young people were institutionalized in such a facility.  UPDATE: But, as of that date, we could find nothing on the DCYF website updating the earlier "clarification." 

            The job posting listed three possible sites for institutionalizing COVID-19 positive foster youth: a summer camp, a church and one of DCYF’s own office buildings in Seattle. Johnson did not say which facility is being used, but the summer camp said it has no intention of being used for that purpose. The church says it is willing, but no such placements have been made yet. So that leaves the office building. UPDATE: The Chronicle of Social Change story confirms it's the office building.

It never had to happen

            The move is still another example of the cruelty of Washington State DCYF.  In a previous post we discussed how DCYF cut off all in-person visits between foster children and their parents in order to pander to some of the state’s worst foster parents.

            Now, consider what DCYF has done to these four children and may do to many more:

First, the children are torn from their birth families. Then all in-person visits are cut off. Then they come down with a terrifying disease. And now DCYF transfers them – and eventually, perhaps many more - into what amounts to a holding pen, where they are cared for by rotating shift staff. 

            And it’s not even a licensed holding pen.  In the email, Johnson said that “children are temporarily being supervised by agency staff and therefore the facility does not require licensure.”

Unable or unwilling?

            The children were institutionalized because, Johnson says:

In all cases, DCYF follows recommendations about sheltering in place procedures for children who are COVID-19 positive. If children can be sheltered in place in their current out-of-home placement, we do so at the direction of health care authorities.  In some circumstances, caregivers may be unable to continue to care for children placed with them. This is the reason the four COVID-19 positive children are currently receiving care at the identified site.  [Emphasis added]
            Perhaps for now the operative word is “unable.” But what about when foster parents are simply unwilling? Given the cruelty of some Washington State foster parents, and DCYF’s willingness to do handstands to pander to them, will these makeshift institutions become dumping grounds for foster parents who decide to get rid of their foster children because the children have COVID-19?

            And why is the only option for these children a holding pen?  Oh, wait, I know: because of the “shortage” of foster parents.  But Washington State doesn’t have too few foster parents. Washington State has too many foster children.  Year after year it takes away children at a rate well above the national average when rates of child poverty are factored in.

            Ideally, of course, DCYF would have determined that these four COVID-19 positive children could simply go home. But let’s give DCYF the benefit of the doubt and assume that, in these particular cases, that really would be unsafe.  That still doesn’t mean a holding pen was necessary.

Somewhere in Washington State, you may be sure, there are four foster children who can go home. In fact, there are many, many more than that.  And you may be sure that once all those children went home, at least some of those foster parents would be loving and caring enough to take in those four youth with COVID-19.

            But Washington State child welfare doesn’t work that way. They don’t even think that way.

A note about terminology

            You may be sure that DCYF will be oh, so upset about terms such as “holding pen” and and “warehousing.”  But when you temporarily confine children in an office building from which they cannot leave for weeks because they have an illness, and leave them to be cared for by shift staff instead of a family, that is warehousing. And while the place where they are kept may turn out to be a very pretty holding pen, it’s still a holding pen.

Tuesday, May 19, 2020

NCCPR news and commentary round-up, week ending May 19, 2020

            We begin with several developments surrounding a pernicious practice known as “hidden foster care.”

● Last year, I wrote a blog post about the hidden foster care scandal in North Carolina – a scandal exposed first by the Associated Press and then ongoing, dogged reporting by Carolina Public Press. Now the scandal has led to criminal indictments of, among others, the former head of the county child welfare agency at the center of the scandal.  According to Carolina Public Press:

The charges included dozens of felonies and misdemeanors related to a yearslong Cherokee County DSS practice that separated children from parents without the oversight of a judge.

As I wrote last year, here’s how hidden foster care works:

A parent is told at a minimum:  We’re going to take your children away and place them in foster care with strangers. In some cases they’re told: We’ll also separate them from each other and place them far, far away. You can go to court and try to get them back but, well, good luck with that. Good luck even visiting them.  Then they offer the alternative: Just sign this little piece of paper in which you “voluntarily” agree to have us place the children with someone nearby – usually a relative.

Of course no lawyer for the family ever looks at that piece of paper first, or explains to the family their rights.  The parents’ only explanation of what the piece of paper means is what the caseworker tells them it means. And while many of these placements are theoretically short-term, in some of the North Carolina cases these agreements effectively involve signing away rights to a child forever.

            It happens all over the country – but only in North Carolina has a judge found it to be illegal. 

            The North Carolina scandal does not mean the practice is illegal everywhere, let alone that there is criminal behavior – there have been no such allegations anywhere else. Nor does it mean that other programs operate as the North Carolina program operated.  But in all its forms hidden foster care is a pernicious practice that should be abolished.  Unfortunately, it is spreading.

            ● In Oregon, the state child welfare agency is using the COVID-19 pandemic as an excuse to expand the practice. I have a blog post about it here.

            ● Another version of the practice involves a program called Safe Families. Proponents would argue that Safe Families is different because, typically, parents themselves reach out to the program and ask that a “host family” take in their children temporarily, and the family promises to return the children on request.  But it doesn’t always work out that way.  Back when the program first began, more than a decade ago, I warned on this Blog that it is really sugar-frosted foster care.

            Now “Safe Families” is seeking to begin operations in New York – and the state Office of Children and Family Services has proposed regulations to allow this. 

In promoting this expansion into New York, Safe Families wrongly claimed support from some family advocates.  In this detailed comment on the proposed rules, those advocates say their views were misrepresented.  They, and other signers, make clear they strongly oppose the program in its current form.  The parents at Rise, a magazine written by parents caught up in the system, also oppose it.

            The move in Oregon is one of several attempts by child protective services agencies to use COVID-19 as an excuse to seize even more power and run roughshod over minimal due process protections for children and families.  On this front there is good news and bad news.

First the good news: Two attempted power grabs, both in California, have failed, at least for now.  An unholy alliance between Big Pharma and Big Foster failed to persuade the California Legislature to weaken laws restricting the use of powerful sometimes dangerous psychiatric medications on vulnerable populations, including foster children.

And to his credit – and to my surprise – the head of the Los Angeles County Department of Children and Family Services wisely refused to cooperate with a scheme by the County Sheriff to send uniformed officers to “check” on children – even when there’d been no complaint at all of any form of abuse or neglect. I’ve updated my blog post about it.

Now the bad news: A court in Cook County has dismissed a challenge to the state child welfare agency’s blanket ban on in-person visits between children and families. The judge ruled that the families challenging the ban had other remedies in their specific cases.  But as John Kelly explains in his story for the Chronicle of Social Change, even as the judge was issuing her ruling, those other remedies appeared to vanish almost before everyone’s eyes.

The hearing, conducted by video, of course, is online here. I’ve cued the video to the conclusion of the Cook County Public Defender’s impassioned explanation of why the ban does so much harm to children.  And see also this statement from the Shriver Center on Poverty Law and the Movement for Family Power.

            ● Shanta Trivedi, clinical fellow at the University of Baltimore Bronfein Family Law Clinic, writes in Slate about why all those “pandemic of child abuse” stories are wrong.

            ● Vivek Sankaran writes about what courts should look like when we get back to something resembling normal.

            ● In Rise, Kenya Franklin writes about the ultimate vindication: not only getting her children back, but successfully suing the child welfare agency for wrongfully taking them in the first place.

            ● And journalist Sylvia Harvey has an important new book about a crucial area where child welfare and law enforcement overlap. It’s called The Shadow System: Mass Incarcertation and the American Family.  Ms. Harvey is interviewed about the book here.

Sunday, May 17, 2020

Oregon using COVID-19 as excuse for hidden foster care, depriving families of due process

Their own “clarification” makes one thing clear: They will sometimes take children when parents have COVID-19

           This story from Reuters is supposedly a “fact check” to reassure people in Oregon that no, the state child welfare agency will not take away your children just because you have COVID-19.  But the “clarification” offered by the Oregon Department of Human Services is anything but reassuring. The agency effectively admits that, under some circumstances they will  take your child if you have the coronavirus.  And they will bypass the already minimal due process protections available to families in order to do it.

          Such abuse of power is alarming in any state - but especially in states such as Oregon, which has a long ugly history of tearing apart families at rates well above the national average.

It all started with this official notice from Oregon DHS:

Effective 4/22/20, if in the course of an assessment a caseworker or supervisor makes the determination that a child will enter substitute care because their caregiver is infected with COVID-19, the caseworker or supervisor will need to select a newly created case note value for tracking these specific entries.

            It’s understandable that some people would read this and think it means what it says: That DHS will take away your child if you have COVID-19.  DHS says that’s not what they meant.  And to an extent I believe them.  If a wealthy parent came down with the coronavirus, but the nanny still was showing up and the parent could isolate himself or herself in one wing of the family McMansion, no, DHS wouldn’t take away the child.

But what if the parent is poor and living in a small apartment? What if DHS deems a parent in such circumstances “too ill to care for the children”?  DHS’s own “clarification” is, in fact, a thinly-disguised sugar-coated threat.  And they’re using COVID-19 as an excuse to make an end-run around minimal due process protections for families and consign children to the chaos of foster care with no attorney for the family, no court review, no chance for a neutral arbiter to decide of the placement is necessary.

            This is done by labeling the placement “voluntary.”  So now, let’s look at the DHS statement “clarifying” the earlier statement:

We do have the capability, within our current rule and procedure, to work with a legal parent/guardian on a voluntary basis, to make a temporary plan for their child(ren) if they are too ill to care for their children. We would explore all options with a parent/guardian in that circumstance including their friends, family and community resources. If we exhausted all options, we could place their child in foster care. This would be a voluntary placement that does not affect a parent’s custodial rights and does not involve the child dependency legal system.

No such thing as “voluntary”

            Notice how often they say “voluntary”? That should send your b.s. meter off the scale. Because in the real life world of child welfare there is no such thing – repeat: No. Such. Thing. as a “voluntary” foster care placement.  Because in child welfare possession is way more than nine-tenths of the law.

            Once you sign the form “voluntarily” surrendering your child to foster care, DHS may say you can get the child back whenever you want because you haven’t given up “custodial rights.”  But all DHS has to do is say: We don’t think you’re ready yet, and we’re going to court. (They can even declare it an emergency and simply get a judge to rubber stamp the existing placement by phone or Zoom without you being present.) Or the foster parent may decide you’re not really suitable and call the child abuse hotline. Either way, the very facts that:

1. Someone else already has physical custody of your child.

2. You “admitted” by agreeing to the “voluntary” placement that you were unable to care for the child, and

3. The “trained professionals” at the child welfare agency and/or the foster parents now deem you unfit

make it extremely unlikely that a judge will let you get your child back.

            Even more outrageous is the way DHS presents the fact that the courts are not involved as though that somehow bolsters the position of the family. On the contrary, as noted above, it means DHS, having secured the parent’s “consent” to the “voluntary” placement can bypass the few legal protections the system affords to families. 

Hidden foster care

It also means, by the way, that DHS can do everything on the cheap – they don’t have to pay the friend, relative or foster parent.  And they can get away with not reporting the placement as an entry into care – making the number of children DHS tears from their families look lower than it really is.  This hidden foster care system is a pervasive problem across the country.

            As for the claim that “We would explore all options with a parent/guardian in that circumstance including their friends, family and community resources” before resorting to foster care with strangers, parents don’t need a giant coercive child welfare bureaucracy for that. 

            For starters, among the many heroes on the frontlines of the pandemic are home health care workers.  If Oregon DHS is serious about helping families stay together when an impoverished parent has contracted COVID-19  it could set up a fund and resources to allow parents with COVID-19 to bring help into the home, just the way rich people do, instead of DHS taking the children out.

            In cases where that’s really not viable, parents can reach out to friends and family on their own.  And if DHS really wanted to help with that, it would set up an online family finding resource entirely separate from child protective services that parents could use to help them find extended family and friends – as opposed to programs that kick in only after child protective services agencies are involved.  

            To really help families, agencies have to relinquish some of their power. Instead, Oregon DHS is using COVID-19 as a smokescreen to wield even more unchecked power over vulnerable families.

Tuesday, May 12, 2020

NCCPR news and commentary round-up, week ending May 11, 2020

COVID-19 related:

● Two weeks ago I posted a blog about double standards concerning educating children online. Wealthy parents who can’t hack it get a pass – and sometimes even plaudits – while poor parents get reported for “educational neglect.” We found out about what happened to poor parents thanks to a story from the online news site The City. Now they have a follow-up, including a demand for answers from New York City’s Public Advocate.

● In Chicago, the Cook County Public Defender has filed a lawsuit to overturn Illinois’ blanket ban on in-person visits between foster children and their parents and siblings.  Public Defender Amy Campanelli has an op-ed column about the issue in the Chicago Sun-Times.

● Elizabeth Brico has a story in Talk Poverty on the harm to children when in-person visits are banned – including the longterm harm even after the pandemic is over.

Stateline has an overview of some of the states that have banned visits.

● Paul DiLorenzo, who for many years ran the consulting operation for Casey Family Programs, has a column in the Chronicle of Social Change called Questioning the Inevitability of a Child Welfare Surge.

● I have a blog post about a “child advocacy center” that discovered that the best way to prevent child abuse is to prevent poverty.  Unfortunately, it took a pandemic for them to figure it out.

In other news:

● Prof. Christopher Church of the University of South Carolina School of Law has an excellent 15-minute video overview of how the child welfare system goes wrong and why, including data on wrongful removal:

● Mathangi Swaminathan has a column in the Chronicle of Social Change on the need to expand what can be funded under the Family First Prevention Services Act and how it’s determined what programs quality for funding.

● Prof. Robert Latham, associate director of the Children and Youth Law Clinic at the University of Miami School of Law, has a blog post about a good federal appellate court decision on a host of issues, including children’s Fourth Amendment rights during child abuse investigations, the misuse of drug testing, and coercing families into foregoing all due process protections and accepting so-called “safety plans.” The full decision is here.

Sunday, May 10, 2020

A “child advocacy center” makes a startling discovery: the more you prevent poverty, the more you prevent child abuse!

Too bad it took a pandemic before they figured it out.

            The Milwaukee Journal Sentinel published a story Thursday about child abuse and COVID-19. Much of it was the usual fearmongering – complete with the unacknowledged racial bias that underlies the assumptions.  They even quoted someone from Children’s Hospital of Wisconsin – a place so prone to see child abuse where it isn’t that some of their own doctors are afraid to send their own children there if those children suffer an accidental injury.

            But one part was a little different.  It concerned a so-called “Child Advocacy Center.”  In what authorities believe to be the most serious cases of alleged physical and sexual abuse, children sometimes are taken to such centers to be interviewed.  At their best, such places reduce the trauma of investigation for children.  At their worst, they spread paranoia and impede real solutions.

            But for one such center, the COVID-19 pandemic apparently has been a revelation: All of a sudden, they figured it out.  The biggest single factor in what we call “child abuse” is poverty. The stress of poverty is the major factor leading a very small minority of parents to lash out against their children.  And to a much greater degree, poverty itself is confused with neglect.

            Apparently the folks at the Marshfield Child Advocacy Center figured this out because they had nothing better to do.  With fewer mandated reporters – from places like schools and, of course, Children’s Hospital of Wisconsin – calling in anything and everything to child abuse hotlines, the staff had time to think things through. And they made good use of that time.  According to the story:

“[T]he staff pivoted to prevention within a week of the stay-at-home order, said director Kristen Iniguez. They recognized that if parents can’t meet their family’s basic needs, stress can cause them to respond to kids in unhealthy ways.
“To support those basic needs is to ideally prevent child abuse, emotional abuse and neglect of children in this lockdown situation,” said Iniguez, a physician.

            As I’ve noted previously, the scientific term for this sort of revelation is: “Duh.”

            It gets better: The folks at the Marshfield Child Advocacy Center are not talking about the kind of prevention that primarily helps the helpers – inflicting “counseling” and “parent education” on families, something that often does no good and sometimes makes things worse. They’re talking about the kind of prevention the child welfare establishment usually hates:

[T]he center teamed up with other service providers. For example, school districts are providing lunches for families to pick up. For those without transportation, the center's staffers are dropping off the food. They are also delivering groceries and connecting families with emergency financial support to help with rent, electricity and cellphone bills.

            All of which leads to two questions:

1.      Why did it take a pandemic for them to figure this out? 

Families needed food and emergency financial support – and they were losing their children to foster care for the lack of it – long before COVID-19.  In Milwaukee, for example, one study found that workers actually are, to use that favorite child welfare phrase, “in denial” about housing problems because they can’t – or don’t want to - fix them.  What were the good people at the Marshfield Child Advocacy Center doing about it then? 

2.      What happens after the pandemic abates?

Will it be back to the take-the-child-and-run approach, or will any real lessons be learned?

That’s also a good question for Emilie Amundson who runs the Wisconsin Department of Children and Families.  Again, from the story:

Amundson hopes some things may change for the better. By the time the coronavirus crisis is over, she said, perhaps her agency will be viewed as a resource for families rather than a source of fear.
“We’re in the midst of a real sea change,” she said. “We have an opportunity through COVID … to de-stigmatize what Child Protective Services has been in the past and make it a place where people can go to get the help they need.”

I have no reason to believe Amundson is not sincere.  But the sea change can’t happen as long as the child welfare system is structured as it is today.  Child Protective Services workers can traumatize children with needless investigations, stripsearch them, consign them to the chaos of foster care and deprive them of their parents forever.  In Wisconsin, such agencies tear apart families at a rate more than 30 percent above the national average.

It would be crazy not to regard such agencies as a source of fear. That fear is not the result of “stigma.” It’s the result of the simple fact that such agencies take children from their parents more than 260,000 times every year – nearly 5,000 times a year in Wisconsin alone.

An impoverished parent dare not reach out to that agency for help in a crisis. It’s not that reaching out that way would never lead to a good result – but it’s like playing Russian Roulette with their children.  Even the decision whether to seek help from professionals who are “mandated reporters” has to be weighed with care.  Whether the family gets help or the child must endure foster care depends on the attitude of the mandated reporter, the culture of the agency, whether there’s been a high-profile child abuse tragedy in the news, which caseworker shows up at the door and what mood s/he’s in.

            Even now, during the pandemic, accepting help can be risky. Remember those food deliveries Dr. Iniguez mentioned?  In Nevada one of those making the deliveries is using them as an opportunity to spy on families.  In Pennsylvania, an advocate urges using video chats with children as a means of spying – and the state human services secretary says you should then call the hotline based on your “intuition.”

            If Amundson really wants that sea change, here’s what has to change: Help to ameliorate the worst aspects of poverty must be made readily available to families without having to go through an agency that can take away their children.  And the people who work for those helping agencies must be exempted from mandatory reporting laws. (That doesn’t mean they’d be barred from calling a hotline if they saw real abuse, they just wouldn’t be under enormous pressure to report anything and everything.)

            Even that may not be enough.  Mandatory reporting was put in place more than half a century ago with no testing beforehand – no studies to see if it would work. The most recent research says it’s backfiring.

            If Wisconsin, or any other state, really wants to reduce child abuse, and if we really want COVID-19 to lead to any sort of change for the better, child welfare systems need to rethink the entire child welfare surveillance state, beginning with the abolition of mandatory reporting.

Tuesday, May 5, 2020

NCCPR news and commentary round-up, week ending May 5, 2020

● Let’s begin with a challenge to the conventional wisdom about child welfare and COVID-19 that has revealed so much about unacknowledged bias in child welfare systems and newsrooms.  It’s from this excellent op-ed in the New York Daily News from four prominent family defenders. They write:

While the media seems wedded to a narrative that suggests more child abuse is occuring, that is not our experience, and we should not let an unsubstantiated narrative divert us from the reality that many children can return home safely and are harmed further by staying in the system. It’s time to evolve our thinking and lessen the pain and suffering of the families torn apart by this system. It is time to bring children home.

● Unfortunately, neither the New York City Administration for Children’s Services nor the private agencies that dominate foster care in the city is rising to the challenge.  Contrary to guidance from both ACS and the federal government, many private agencies are cutting off all in-person visits between children in foster care and their parents.  Uptown Radio has a very good story about it. And I have a blog post about private agencies that want their staff to be declared “essential workers” – but don’t want to actually do the essential work.

● Also in New York City: When the coronavirus crisis began I heard rumors that schools were actually calling in reports of  “educational neglect” when their children did not “show up” for online classes.  The online news site The City found out that’s actually been happening. In contrast, The New York Times reports on the sympathy, even praise that white, middle-class parents get when they give up on online classes for their kids.  I have a blog post about it, with links to both stories.

● Fortunately, a ruling by a New York appellate court, in a case that predated COVID-19, might help speed up the process of reunifying families. The Chronicle of Social Change has a story about it.

● All these stories about the value of high-quality legal representation reinforce the point made by Vivek Sankaran in this column: In child welfare cases, just any lawyer won’t do.

● Also from Prof. Sankaran and Prof.Christopher Church, in the SMU Law Review Forum:  Rethinking Foster Care: Why Our Current Approach to Child Welfare Has Failed.

Rise has a story on the value of this kind of representation in New Jersey – and why it’s especially important now.

Also in Rise, an interview with the head of the Children’s Bureau, Jerry Milner, and his Special Assistant, David Kelly on the right way to respond to COVID-19.

● For a classic example of the wrong way to respond, check out Los Angeles County Sheriff Alex Villanueva’s terrible, horrible, no good, very bad idea.

In other news:

● Of course we want to help kids cope with trauma. But as long as those administering a questionnaire to poor people about “adverse childhood experiences” also are mandatory child abuse reporters, it is unsafe for poor families to respond.  California is making poor families guinea pigs in a dangerous experiment. I have a column about it in Youth Today.

● The Department of Health and Human Services has issued an information memorandum to child welfare agencies and courts about how to make foster care what it should have been all along, “a support to families, not a substitute for parents.”

In the same issue of Children’s Bureau Express, attorney Kathleen Creamer writes about a client, Denise, and her daughter Autumn, whom she helped early in her career. The foster parents fought tooth and nail to terminate the mother’s parental rights.  They lost.  But then …

Understandably, Autumn's foster parents experienced tremendous grief and loss when Autumn went home to her mother. They reached out to Denise and asked if they could visit with Autumn, and Denise asked for my advice. On the one hand, these foster parents had been incredibly hostile to her for months on end and tried to take away forever the most precious thing in her life. On the other hand, Autumn loved them, and Denise didn't want to take any love away from her daughter.
In one of the most loving acts of grace and selflessness I've ever witnessed in my career, Denise decided to open the door to contact between Autumn and her foster parents. Years later, I heard from Denise and learned that the foster parents had become family. Autumn visited with them often, and a true and supportive friendship grew between Denise and the foster parents.
Somehow Denise knew what our system too often encourages us to ignore: there is no such thing as too many loving, supportive connections in a child's life. I think a lot about how often we ignore this truth and the costs to our families of doing so.

● And finally a very short blog post from Prof. Robert Latham about a case that ignores that lesson and aptly illustrates the contempt for families of some child welfare agencies, and some courts.

Sunday, May 3, 2020

Child welfare and coronavirus: L.A. County Sheriff’s grandstanding may increase the risk of kids contracting COVID-19

Los Angeles County Sheriff Alex Villanueva
 “The Donald Trump of L.A. Law Enforcement” has a plan

UPDATE, MAY 14, 2020: To its credit, the Los Angeles County Department of Children and Family Services objected to the scheme and the sheriff has asked that it be "reconsidered."

You’re doing everything you’re supposed to do to stay safe during the pandemic: strictly observing social distancing; only going out when absolutely necessary.  Then there’s a knock at your door.  Of course you’re not going to open the door and put everyone at risk, are you?

But wait. This time the guy on the other side of the door is wearing a uniform and a badge and carrying a gun. He’s a sheriff’s deputy.  He wants to do a “welfare check” to see how the kids are doing.  No one has so much as accused you of abusing or neglecting your children – but the Sheriff’s office decided, after consulting with the local child welfare agency, that you just might.

Now what do you do? Let him in and put everyone at higher risk of COVID-19, as this stranger who’s been who-knows-where-else checks all around the house? Or say no and risk him deciding that makes you a child abuser - and coming back with a court order to take the kids? (Or maybe he won’t even wait for the court order.)

Child welfare’s response to COVID-19 is a microcosm of child welfare in general: It flunks the balance-of-harms test.  And as is often the case, when much of the country performs badly, Los Angeles County looks for new ways to perform worse.

All over the country, child protective services agencies have been fearmongering – apparently without giving a moment’s thought to the notion that it is racist to declare that as soon as mostly white, middle-class “eyes” are not on overwhelmingly poor, disproportionately nonwhite children, their parents will unleash their savagery upon them in “pandemic” proportions.

But while other states and localities have confined themselves to urging everyone to spy on their neighbors and turn them in to hotlines, Los Angeles County Sheriff Alex Villanueva doesn’t want to wait for hotline calls.

According to a breathless story in the Los Angeles Times:

In response to the drop in abuse reports, Villanueva said he is launching a plan “to do welfare checks on our most at-risk kids with patrol personnel.” He said he is working with the Special Victims Unit, the Department of Children and Family Services and other stakeholders to develop a way to identify high-risk minors who may not have contact with their schools and then have patrol deputies do some form of a welfare check.

There is no explanation of how the Sheriff will decide who is “high risk” – but I’m guessing that there won’t be many deputies sent to make random checks in Beverly Hills.

It is not clear whether the Department of Children and Family Services will go along with this scheme – and they’d probably have to agree for it to work, since they’d be the ones deciding who is “high risk.” But DCFS director Bobby Cagle has done the usual call-in-anything-and- everything fearmongering, and his track record is not encouraging

[UPDATE, MAY 14, 2020: To his credit, and to my surprise, Cagle objected, telling the  Times: 
In the end, DCFS decided that sending a uniformed law enforcement officer to a family’s home without any articulable suspicion of child abuse or neglect would not necessarily improve safety for children.  To the contrary, such an action might increase stress on families and children, especially those in already marginalized communities, during one of the most stressful times most have ever experienced.
Other advocates also objected and the sheriff has now asked that the proposal be "reconsidered."  

That may have come as a surprise to Richard Winton, the Times, its reporter who has covered the sheriff's scheme.  When the sheriff first announced it,] Winton bought the whole party line.  In a style more suited to Fox News or the New York Post, Winton wrote that

Eagle-eyed teachers, doctors, dentists, counselors, coaches — an army of mandated reporters across California — along with security guards, janitors and observant parents typically fill the hotline with reports of suspected child abuse or neglect. Those calls, investigators say, often save lives.

There are a number of problems with this:  

● Those “eagle eyed” mandated reporters are just as likely to be making CYA reports because, as mandated reporters, they’re afraid to do anything else.

● The “army” is an army of conscripts. Some of the “soldiers” have realized they’re doing harm, and are calling for an end to mandatory reporting.

● As for saving lives, that’s possible. But it’s more likely that mandated reporting has cost even more lives. 

Mandatory reporting was put in place decades ago with no evidence it would work.  By 1998 the National Research Council had concluded there is, in fact, no evidence it makes children safer. More recent research suggests it makes children less safe.  The research suggests mandatory reporting deters people from seeking help, deters battered women from reporting their abuse and overloads the system so child protective services agencies miss more children in real danger.

He even used the wrong horror stories

The sheriff appears oblivious to the irony of  invoking the names of the children in two high-profile child abuse tragedies Gabriel Fernandez and Anthony Avalos. Those deaths had nothing to do with a lack of mandated reports – they had to do with failure to follow up on the reports, quite possibly because the system was so overloaded.   Nationwide, 97 percent of calls to hotlines are either screened out, false reports or neglect cases.  By overloading systems with all those false reports and cases that often involve poverty, workers have less time to find the other three percent.  

 Here’s how Prof. Jane Spinak of Columbia University Law School put it in a just-published paper (available as Chapter 7, here).

First, it is clear that the vast majority of reports do not result in state action because a child has been mistreated; there is a lot of noise in reporting. Hunches, vague suspicions, better-safe-than-sorry beliefs, passing the buck to someone else instead of figuring out how to be helpful, anonymous calls and instances of malicious false reporting still require state investigations that cost time and money.
Reducing those types of reports because children are not as casually observed will reduce unnecessary family disruption and trauma and will give investigators more time to scrutinize when children are actually in danger, usually of serious physical or sexual abuse.
Fewer reports based on unsubstantiated feelings and just passing the buck will also mean workers will have to do fewer in-person investigations, leaving them and the families they are investigating less exposed to COVID-19.

So if anything, fewer junk reports might leave workers more time to find the next Gabriel or the next Anthony.  The retreat of the “army” of mandated reporters might make children safer.

The sheriff’s own department needs attention …

            The Los Angeles Times story describes Villanueva as someone “who spent years working the streets and is a veteran of child abuse and neglect investigations.”

            But there may be a bit more to him. Indeed, given his profound concern about violence, Villanueva, dubbed by Los Angeles Magazine, “The Donald Trump of LA Law Enforcement,” might want to focus more closely on his own department. 

…and the L.A. Times needs more careful editors

As for the story itself, how does Winton know if those teachers, dentists and janitors are  “eagle eyed” and not simply calling in CYA reports to protect themselves?  Has he checked their eyesight?  Has he watched the “army” drill and checked their training?  Clearly, the story could have used a better editor; in particular a certain legendary Los Angeles city editor – literally legendary, since he was a work of fiction:

The analogy isn’t perfect, of course. In the clip, the lead that went beyond the facts was for a story about police misconduct.  In the L.A. Times, the florid prose is in the service of a worshipful view of “law enforcement,” whether it’s the sheriff or the so-called “eagle-eyed … army...”  (Or, for those who have seen the episode, the Times story combines the prose style of Rossi with the attitude of Driscoll.)

Bad ideas like Villanueva’s – and the way they are covered in newspapers like the Times - are the harvest we’ve reaped from decades of hype and hysteria persuading us that there is a child abuser under every bed.  COVID-19 makes it all worse.