Tuesday, April 27, 2021

Some members of the Massachusetts Mandated Reporter Commission are asking very good questions. Here’s what the Commission chair didn’t tell them.

Nearly two years into their work, Commission members speak of being "shocked," "surprised" and "taken aback" by what they heard at public hearings.

The Mandated Reporter Commission will make recommendations 
to the Massachusetts Legislature

When a commission in Massachusetts charged with studying the state’s laws regarding mandatory reporting of child abuse and neglect and making recommendations to the State Legislature announced that, nearly two years into the process, it would, at last, hold virtual public hearings, I almost decided not to bother testifying. 

The whole effort looked like a stacked-deck process from the start; the hearings looked like a pro-forma exercise before the Commission did what it wanted to do in the first place: further expand a failed system of mandated reporting and, while they were at it, make it even easier to confuse poverty with neglect

But it looks like I may owe some members of the commission an apology. I certainly hope so. 

For starters, the hearings were nothing like what the commission members expected.  Somewhere between 30 and 35 people testified.  Only one supported the commission’s draft proposals.  And the dozens of opponents weren’t just those you might expect.  

There were national experts, such as Prof. Dorothy Roberts, who literally wrote the book on child welfare and race, Dr. Mical Raz, who literally wrote the book on the failure of mandatory reporting, and Prof. Kelley Fong, whose research demonstrates why mandatory reporting backfires.  (Many, many more scholars, including former proponents of mandatory reporting, have changed their minds, as NCCPR documented in our written testimony.) But it didn’t stop there.  When it came to the Commission’s draft proposals: 

● The foster parent who testified opposed them.

● The adoptive parent who testified opposed them.

● The former DCF social worker who testified opposed them.

● Even the speaker from the League of Women Voters opposed them. 

The Commission holds a meeting 

On Monday, the commission held a virtual meeting to discuss what they heard.  Words that kept coming up included “shocked. “surprised” and “taken aback.”  And at least one member of the Commission, Middlesex County District Attorney Marian Ryan, wondered if the commission has been on the wrong track all along.  Said Ryan: 

I spent a lot of years thinking that [mandated reporting] gets us to a better place; I’m disheartened to hear maybe it really doesn’t - and even if it does, perception is reality.  A lot of well-credentialed, well-meaning experts think this doesn’t work. I don’t know how we’re going to get any legitimacy about finetuning the process if a significant number think the process doesn’t work anyway. … I was taken aback to hear so much of that conversation. 

Finding out if we critics are right, Ryan said, “Should be job 1.” 

It should have been job 1 from day 1.  But the Commission proceeded for nearly two years without even knowing about such concerns.  That’s not the fault of Ryan or the others who expressed surprise Monday.  I’ll get to why I think that happened below.  But Ryan was so concerned she floated the idea of the Commission shifting its entire focus from increasing reporting to bolstering prevention. 

Another commissioner, Nina Marchese, director of the Office of Approved Special Education Schools, was “shocked” by a recurring theme at the first hearing: The state Department of Children and Families (DCF) tears children from the arms of mothers whose only crime is to be victims of domestic violence themselves.  This is a common practice across the country – and so incredibly harmful to children that in one state it’s illegal. 

The Commission staffer conducting the meeting and the representative from DCF immediately tried to spin the issue and claim that really, they would almost never do such a thing.  Domestic violence survivors in Massachusetts and their lawyers made clear during the hearings that, in fact, they do.  And as a result, domestic violence victims are afraid to come forward and get help. One of those lawyers spoke of the children in such cases, calling her and crying because they weren’t allowed to go home from foster care. 

But what is shocking is that, again, after all this time, a member of the commission would be shocked to learn this problem even exists. 

The commission representative from the state Attorney General’s office, Angela Brooks, also expressed some skepticism about the thrust of much of the Commission’s work so far. During one of the hearings, she acknowledged another failing: a lack of diversity among the Commission members. 

How things reached this point 

The key to understanding how the commission could go so long and wind up surprised and shocked about so much can be found in the fact that it is chaired by the director of the state’s Office of Child Advocate (OCA), Maria Mossaides, and staffed by her office. 

In recent years, there has been no advocate or public official in Massachusetts more fanatical about expanding the child welfare surveillance state and taking away children than Mossaides.  That is typical of state Child Advocates or “ombudspersons.”  That’s not because Mossaides wants to hurt children – she wants to help them.  But her efforts have backfired. 

Mossaides’ office zeroes in on the most extreme cases, the ones called horror stories because they are so horrible – and so rare.  Then she issues Scathingreports (that’s how they’re always labeled in the news accounts so we might as well make it one word) that effectively call for making the coercive parts of the system bigger.  

The problem is not that she focuses on the horror stories – they demand and deserve attention. The problem is that this leaves the impression that the only error DCF makes is to leave children in dangerous homes.  Such reports contribute to foster care panics  - sharp sudden spikes in removals of children from their homes -- that further overload the system. Workers then have less time to prevent the next tragedy. After the tragedy Mossaides issues another Scathingreport and the cycle begins anew.

Even a casual observer can see that Mossaides dominates the Commission.  At Monday’s meeting, she probably spoke more than the rest of the commissioners combined.  So it’s worth looking in detail at some of the ways Mossaides’ office stacked the deck – and is still trying to do so. Here’s a partial list. 

Are some witnesses more equal than others?  At one point, commission staff (which, again, is also OCA staff) mentioned that while yes, almost every witness at the public hearings opposed the commission’s recommendations, other speakers they’d heard from favored the current system of mandatory reporting.  Where did those speakers come from? 

Apparently, these were specially invited speakers, who got to speak to the Commission early on.  Did anyone who might challenge Mossaides’ view of the system get an invitation? Doesn’t seem that way. 

Who summarizes the testimony?  The Commission promises to make public all 53 written testimony submissions as well as video of the public hearings.  (Though considering the last hearing was on April 17, it’s hard to see why it’s taking this long just to post a couple of Zoom videos.) [UPDATE, APRIL 30: The written testimony is now available, but so far only audio of the hearings themselves, making them harder both to follow and to search.  So I've posted a guide to how to find the parts I think Mossaides least wants you to hear and readThat’s a lot of material for the commissioners to digest.  So a commission/OCA staff person will prepare a digest.   

The staffer in question ran the hearings with consummate fairness and professionalism. I’m sure she will make the same effort when summarizing the testimony.  Nevertheless, my question to the prosecutors on the commission is this: Would you decide whether to charge someone or what kind of sentence to recommend to a judge based solely on a summary of the case prepared by the accused’s lawyer?  It’s a lot to ask, given the amount of material you have to look at, but please don’t rely on OCA’s version of what people who disagree with OCA have to say. 

Misrepresenting the nature of neglect.  This one is straight from the playbook used by all of those who want to justify the current massive child welfare surveillance state: Using the few neglect cases that are, in fact, horror stories to represent a giant category that is, mostly, poverty cases.  Thus Mossaides said: 

From OCA experience, the neglect cases that we see result in very serious emotional and physical injury to children. … it’s not Twinkies for breakfast or school without a winter coat. Neglect cases that we see are far more serious. [Emphasis added.] 

But, Ms. Mossaides, you don’t see a typical cross-section of cases – you focus on the most horrible cases.  If you really wanted to know what DCF does in typical cases, you would do what your former counterpart in New Jersey, Kevin Ryan did when he was that state’s child advocate in 2005.  Not only did he look at a random sample of cases, he made sure the casereading would be objective by having the cases read by two groups with opposite views of the extent to which the state should intervene in families. 

Even DCF’s own annual report makes clear that the neglect cases OCA sees are rare
exceptions.  Of all the reports alleging neglect – a total of 63,101, 16 were fatalities.  Another 1,121 involved a substantiated allegation of a substance-exposed newborn – and contrary to the fearmongering from the foster care establishment, not every such case by a longshot involves a parent endangering her child. (See below.) The remainder, 14,345 cases, are labeled simply as “neglect.”

In denial about foster-care panic.  When it comes to tearing apart families, even in normal times, Massachusetts is an extreme outlier when it comes to tearing apart families.  The state removes children at a rate 60% above the national average when entries into care are compared to the number of impoverished children in each state.  Foster-care panics make things even worse.  But Mossaides claimed that a huge spike in removals of children had nothing to do with high-profile deaths in 2014 and 2015 making workers scared to leave children in their own homes.  No, said Mossaides, it was not a foster-care panic, rather, she claimed, it was entirely due to the opioid epidemic.  The data show otherwise: 

● The giant spike in entries into care in Massachusetts occurred in 2014.  The opioid epidemic had started the year before – and got much worse in later years, even as entries into foster care in Massachusetts were going back down to their usual obscene rate. 

● The fact that DCF caseworkers were checking a substance abuse box on a form is not the same as substance abuse always being the actual reason for removal.  It could be anything from a wrong guess by a caseworker, to a false positive drug test, to a mom smoking pot to ease the pain of labor or keep food down during pregnancy, to a mom taking legally-prescribed medicine as part of treatment for substance use.  (And DCF seems to have a particular obsession about marijuana.) 

● Not all substance use is cause for removal.  But even in the best of times, agencies such as DCF often act as though it is.  During a foster-care panic, workers are that much more likely to conclude that a case involving alleged substance abuse requires removing the child from the home – even when there are better alternatives. 

The “family resource centers” will take care of it.  Mossaides tried to sell the Commission on the idea that DCF was really just a kindly, helping agency and that a veritable cornucopia of “preventive services” is available to families.  She repeatedly cited DCF Family Resource Centers (FRCs).  But there’s a huge catch: The people who run and work at those centers are mandated reporters.  Mossaides said they rarely actually call DCF.  But every parent who asks for help must fear that s/he is the one who will be turned into DCF and her family’s life turned into a nightmare.  Prof. Fong, who testified at one of the hearings, discussed how her research found that as a result, families who need help are afraid to seek it out.  

So if the Commission is serious about a new focus on prevention, step one is to exempt workers in FRCs, and all other preventive programs from mandated reporting laws.  That would not mean they were prohibited from reporting if they genuinely thought it was best for a child. But it means they would be able to exercise their professional judgment and training – and not fear prosecution and a fine if they exercise that judgment and don’t report.  (And, by the way, the Commission is considering recommending much larger fines.) 

In addition, preventive services programs should be taken away from DCF entirely and run by community-based organizations. 

Misrepresenting opponents. Of course, Mossaides invoked horror stories.  In doing so, she misrepresented what witnesses said at the hearing.  Mossaides said: “I’m always worried if we abolish the 51a system, [51a is the term used for a report of alleged abuse or neglect in Massachusetts] what happens to all those children who are injured – intentionally abused, the 8% to 9% who are victims of sexual abuse?” 

While I would be glad to discuss abolition at some future date, none of the witnesses said that the system should be abolished.  They didn’t even say all child abuse reporting should be abolished.  Most didn’t even say all mandatory reporting should be abolished – though I did.  Rather witnesses said that, at a minimum, Massachusetts should stop expanding a failed system.  

And it is that ever-expanding ever more oppressive system Mossaides wants to further expand that not only hasn’t stopped the horror stories, it’s made them more likely by overloading caseworkers with false reports and poverty cases.  

It’s not 15%, it’s more like 3%

This did not come from Mossaides, but a number got into the atmosphere at the meeting that is not quite correct. 

It was suggested, simply as a hypothetical, that 15% of cases involved things that no one would doubt required coercive intervention and removal of children  - physical and sexual abuse.  But that figure appears to be based on the percentage of reports that are screened in and then “substantiated” – a term that means only that a caseworker checked a box on a form saying it was slightly more likely than not that abuse occurred.  

But since the Mandated Reporter Commission is looking at whether to encourage reports alleging child abuse, the real question is, of all such reports to child abuse hotlines, what percentage are ultimately deemed by caseworkers to involve actual physical and sexual abuse.  Nationwide, it’s not 15% - it’s more like 3%. (See p.4 of NCCPR’s written testimony to the commission.)  It’s almost exactly the same in Massachusetts.  That doesn’t make those cases any less horrible, and it doesn’t make the need to try to stop them any less urgent.  But understanding that 97 times out of 100 the call is a false report or a neglect case is crucial to understanding why deluging DCF with more such reports only makes it harder to find children in real danger. 

What about the middle-ground cases? 

Ryan, the District Attorney, raised another important question: There are cases on the far ends of the continuum where everyone can agree: A proportion that never should have been brought into the system and a proportion where not just intervening but removing the child immediately was the right call.  But, she asked, what about the in-between cases? 

Apparently, Mossaides didn’t tell the Commission about the landmark studies done by Prof. Joseph Doyle of exactly those sorts of cases.  He found that even when families were not offered any extra measure of help, the children left in their own homes in such cases fared better in later life than comparably-maltreated children placed in foster care.  Prof. Doyle is right nearby at MIT.  I’m guessing he wasn’t one of the people invited to address the Commission. 

First, hit the brake


And that brings me to something else that Nina Marchese, who was shocked about DCF taking children from battered mothers, said during the meeting. She expressed some frustration that while one witness after another told the commission what not to do – namely most of what it is considering recommending – we didn’t explain what to do instead. 

But think of it this way: Imagine there is a bridge out ahead and a car is careening toward the cliff at 90 miles an hour.  The commission is like that car.  We had only about three minutes each to testify – just enough time to yell: Hit the brake!!! Hit the brake!!! 

People like Dr. Raz, Prof. Roberts, Prof. Fong and so many others have so many ideas for how to rebuild a better bridge.  NCCPR has a few as well.  I’m sure they are as eager as I to discuss them with anyone on the Commission who might be interested. 

But please: First, hit the brake.’s a lot to ask, but please don’t rely on OCA’s version of what people who disagree with OCA have to say.