Monday, November 27, 2023

The two questions reporters covering child welfare in NYC should always ask

Even these two excellent stories leave two key questions unanswered - as almost always
happens when reporters write about family policing in New York

Brooklyn Defender Services has filed a lawsuit against the New York City family police agency, the Administration for Children’s Services, on behalf of a family that has been subjected to repeated, traumatic investigations as a result of false anonymous reports alleging child abuse. 

ProPublica broke the story. The Imprint also has an excellent account. 

The family has been harassed with false reports more than 24 times.  Over and over, ACS would show up at the home at all hours and pound on the door. At least once they were accompanied by police, guns drawn.  Here’s how ProPublica describes one encounter: 

It was 5:30 a.m. Flashlights beamed in through the windows of the ground-floor apartment in East Flatbush, Brooklyn. Police officers and child welfare caseworkers were ordering a woman to open her front door. 

When she did, the first thing she saw was that the police had their guns drawn. Her hands flew up into the “don’t shoot” position; she was well aware of the recent stories of cops “shooting first and asking later.” She prayed that her 7-year-old son was still asleep in his room. 

Or they’d interrogate the child at school.  As his mother told The Imprint: 

“I wasn’t able to protect him like a mother.  Especially when he had to come home and cry to me that the kids were teasing him, saying: ‘ACS are gonna come and take you.’ 

“I just felt like I failed him.”

Ultimately two different judges had to intervene to curb ACS’ harassment of the family.  One of them even ordered ACS to refer the matter to the Brooklyn District Attorney to investigate the caller – but, of course, since the calls were anonymous that won't be easy. 

How did ACS respond to media queries about the case?  By hauling out its standard playbook of lies and misdirection – the one that works almost every time. 

ACS’ outright lie 

For starters, there was their standard out-and-out lie. 

When ProPublica asked about the specifics of the case and the agency's response, ACS just ignored those questions.  But when The Imprint asked, out came the standard-issue lie: 

A spokesperson for New York City’s Administration for Children’s Services told The Imprint that her agency is unable to publicly discuss individual cases. 

They say that over and over and over.  And except for one New York Times story, no reporter ever seems to have checked to see if it’s true. 

It’s not. 

The failure to check is, in some ways, understandable.  Reporters are used to the extent to which various laws allow family police agencies to cover up the harm they do to families.  So they just assume it must always be true. 

But while it is true that family police agencies can’t comment on individual cases in most states,  it’s not true in New York. 

Nearly 30 years ago, New York State law was changed to specifically allow family police agencies to comment on individual cases under certain circumstances.  

This is a link to the law.  Have a look. 

Did you spot it?  It’s the part where it says circumstances in which family police agencies can comment include where 

there has been a prior knowing, voluntary, public disclosure by an individual concerning a report of child abuse or maltreatment in which such individual is named as the subject of the report … 

I’d say a case in which the accused is doing interviews and filed a civil lawsuit qualifies. 

This clause is included in a law commonly known as “Elisa’s Law,” after Elisa Izquierdo, a child known-to-the-system who died in 1995. 

So the first question any reporter in New York should ask whenever a family police agency claims it can’t comment is: “What about Elisa’s Law?” 

By the way, Arizona law is even more generous in allowing its state family police agency to comment, but that agency pulls the same stunt – and always gets away with it. 

As for other states: The laws that stop them from commenting were not handed down on tablets from Mount Sinai.  If family police agencies in these other states wanted the right to comment, they could persuade lawmakers to give it to them.  But, of course, they’d rather hide. 

ACS’ game of misdirection 

New York is one of 13 states in which local governments run family policing systems with some sort of state supervision.  The nature of this supervision varies, but in New York, the state runs the child abuse “hotline.”  If the state screens in a report – and the criteria for screening-in are extremely low – the local family police agency, in this case ACS, has to investigate. 

UPDATE: For this post about the need to ask more questions, I didn't ask enough questions.  Nora McCarthy, director of the New York City Family Policy Project, points out something I didn't know: ACS and its counterparts across the state have the right to ask the state hotline to reconsider any report it screens in. In fact, they're required to do this if they think the report doesn't meet the legal criteria for screening-in.  The hotline still has the ultimate authority.  It sure would be interesting to know how often ACS has exercised what amounts to right to appeal - if ever.

And sure enough, that was ACS’ copout here.  To read what ACS told The Imprint you’d think they were the real victims – dragged kicking and screaming by the state to gently knock on the door of this family.  So ACS passes the buck by saying: 

“The State should conduct a full review and assessment of [State hotline] practice and policies, as well as mandated reporter laws, and then take actions (legislative or otherwise) to address.” 

There are a couple of problems with this. The first is that, once you’ve investigated the same family over and over and found nothing, you don’t need to go in with guns drawn and otherwise make the process as traumatic as possible. For some reason, in this case it took two separate judges to explain this to ACS.  [UPDATE: In fact, once you know a family is being harassed this way you could appeal the hotline decision to keep screening-in these anonymous, harassing calls.] 

But also, notice what’s missing in the list of things ACS wants the state to do.  There is no request that the state simply allow ACS and its counterparts do to their own screening. 

That’s how it’s done in most cases in Pennsylvania.  The state runs the hotline, but for the overwhelming majority of calls, counties are allowed to do their own screening.  Decades ago, in New York, metropolitan Rochester and Syracuse did it all themselves, running their own hotlines. 

Why doesn’t ACS want the power to screen calls referred by the state hotline?  Probably because they like having no choice.  Because choices come with accountability.  The status quo is perfect for ACS.  They can do anything they want to tens of thousands of families and then pass the buck to the state.   But if they had screening power, they would be unambiguously responsible whenever they harass a family by investigating multiple false reports. 

But there’s another reason: If ACS had screening authority and it wrongly screened out a legitimate call and tragedy followed, they’d be the ones at the other end of headlines screaming “Who let this baby die?”  

Conversely, the state has an incentive to screen in all sorts of cases it shouldn’t because the burden will fall on the localities they overload with all those false reports.  But if the state hotline wrongly screens out a case then state officials are on the receiving end of those headlines. 

So the second question any reporter in New York should ask is the one they should ask when ACS (or its counterparts in the rest of the state) say: “The state made us do it”: Have you asked the Legislature to let you screen reports after the state passes them on? [UPDATE: And also: How often do you exercise your right to appeal a hotline decision to screen-in a call?]

The third question, of course, is: Why not?