Child welfare and civil liberties: When we betray our principles, we betray our children

First of two parts

Late last year, The New York Times published a story about the frightening amount of power, and the frightening lack of accountability, among some of America’s county sheriffs. It included this example:

This year, the sheriff in Worth County, Ga., ordered his deputies to enter the local high school in search of drugs. They lined up 850 students with legs spread and hands against the hallway walls. Deputies inserted fingers into girls’ bras, and touched their underwear and genital areas while searching in their waistbands or reaching up their dresses, according to the Southern Center [for Human Rights], which sued the sheriff.

The deputies had no warrant or other authority to conduct the search, the suit charged. No drugs were found. … The Georgia sheriff was recently indicted in connection with the mass search and has pleaded not guilty. The lawsuit resulted in a $3 million settlement.

Wow. A $3 million settlement and criminal charges – charges that included a misdemeanor count of “sexual battery.”  Just goes to show what happens when advocates of civil liberties mobilize.  Even authorities with all that power can be held accountable.

A random sample of the nearly 200 comments on the story found unanimous condemnation of the abuses outlined in the story (of which the example above was only one) – not to mention a rush to blame it on political conservatives.

Now, consider a far more common infringement on civil liberties, as described by The New Yorker:

You will hear a knock on the door, often late at night. You don’t have to open it, but if you don’t the caseworker outside may come back with the police. The caseworker will tell you you’re being investigated for abusing or neglecting your children. She will tell you to wake them up and tell them to take clothes off so she can check their bodies for bruises and marks.

Even though this story described the rule, not the exception, there were no cries of outrage from civil libertarians. And the letters to The New Yorker in response to the story defended the people inflicting this infringement on civil liberties on defenseless children.

Because, of course, the people doing this to children were not sheriff’s deputies, they were – and are

– child protective services workers.  The differing responses illustrate, once again, that the quickest way to get many liberals to renounce everything they claim to believe about civil liberties is to whisper in their ears those two magic words “child abuse.” (The Left has no monopoly on hypocrisy – it was that great “family values conservative” Newt Gingrich who proposed confiscating the children of the poor and throwing them into orphanages.)

Just say the magic words

But for many on the left, call it a child abuse investigation and suddenly, behavior which in any other context would be sexual abuse is deemed acceptable. Behavior like this concerning a six-year-old:

The caseworker says that she needs to take pictures of Jackie’s body. Her mother, visibly shaken, again expresses discomfort, but the caseworker tells her “Oh, don’t worry. It’s more stressful for the parent than it is the child.”

And so Jackie’s mother helps Jackie to take off her clothes. The caseworker asks Jackie to lie down on the bed and spread her legs. Despite having no training in this specialized work, she then “[takes] pictures of Jackie’s vagina and buttocks in a closed position, and then instruct[s] [her mother] to spread Jackie’s labia and buttocks, so that she [can] take pictures of the genital and anal areas.” For months afterwards, both Jackie and her mother suffer from nightmares, anxiety, and depression.

Finding no basis to substantiate its concern that the child may have been abused, the state closes its case file.

Or consider the case in which these questions ultimately reached the U.S. Supreme Court (which ducked the issue) – a case in which NCCPR’s Vice President served as pro-bono counsel for the family:

Nine-year-old Sharon [not her real name] was removed from her classroom by school officials and escorted to another room in the school where she was met by two men, one of them a uniformed deputy sheriff carrying a gun.  They had no permission from any court; no neutral arbiter had decided first if what these men were about to do really was necessary.

For two hours Sharon was interrogated.  She was badgered relentlessly when she did not give the men the answers they wanted to hear.  She was too scared to leave the room, too scared even to ask for a glass of water.   She realized that the only way out was to lie.

Needlessly to say, Sharon was not a criminal.  On the contrary, the two men thought that maybe Sharon had been abused, and this seemed to them the most convenient way to find out.

But the botched interrogation led only to lies and confusion.  And it set off a cascade of error that caused even more trauma to Sharon including a stripsearch, a highly traumatic medical examination and several weeks consigned to America’s chaotic system of foster care.

Should “speculation and hearsay” really be enough?

In their own brief to the Supreme Court authorities in Oregon, where the case arose, actually said they should have the right to do this to a child based on – their words – “speculation and hearsay.”

Not everyone on the Left turned a blind eye. On the contrary, the case was notable for the fact that groups on the left, such as the Southern Poverty Law Center, the National Center for Youth Law, the Juvenile Law Center and many groups that represent children in child welfare cases as well as groups on the right such as the Family Research Council and the Eagle Forum filed “friend of the court” briefs supporting the family.

But there were some notable absences. The American Civil Liberties Union remained silent. (That’s not unusual. At the national level, when it comes to the notion of applying civil liberties to child welfare, the ACLU tends to be AWOL.)  The group that so arrogantly calls itself “Children’s Rights” does not seem to think those rights should include the ones covered by the Fourth Amendment. And the National Association of Social Workers actually submitted a brief supporting the nearly unlimited power to subject children to this kind of trauma.  (The Clinical Social Work Association, in contrast, stood up for the children.)

Meanwhile, in still another appalling case, in which girls were stripsearched in front of a male police officer, a lawsuit has been brought for the family by a conservative group, the Home School Legal Defense Association.

The intrusion doesn’t have to rise to the level of a stripsearch to be traumatic.  The questioning alone can traumatize a child, particularly a young child.  As three of the leading child welfare scholars of the 20th century, Anna Freud, Joseph Goldstein and Albert J. Solnit wrote, in calling for far higher standards before ever intervening in families:

Children react even to temporary infringement of parental autonomy with anxiety, diminishing trust, loosening of emotional ties, or an increasing tendency to be out of control.

The Baltimore Sun recognized this in an editorial cautioning against toughening “mandatory reporting” laws – even at a time when the pressure to toughen those laws was greatest, right after the crimes of former Penn State coach – and foster parent - Jerry Sandusky were exposed. As the Sun wrote:

Moreover, abuse investigations are inherently traumatic for children. They often involvehours of intensive questioning about sensitive issues of sexuality, shame and guilt as well as intrusive physical examinations that frighten and humiliate suspected victims. The stress brought on by such procedures can leave lasting emotional and psychological scars even on children who turn out not to have suffered abuse.

The new normal

That kind of intrusion is the new normal for Black families. Arecent study found that 53 percent of African American children will endure a child abuse investigation before they turn 18. 

Indeed, the very fact that the child welfare system targets almost exclusively poor families and disproportionately families of color helps explain the lack of outrage, especially in the media and among politicians. One can see that in Massachusetts when all of a sudden media and politicians did get outraged – when it happened to people of their race and their class: middle-class foster parents.

But that doesn’t explain all of it.  Stop-and-frisk targets the poor and it targets people of color. Liberals can be relied upon to be outraged by it. Yet many of the same liberals who will rise up in righteous wrath against infringements of the civil liberties of adults by law enforcement stand silent or, worse, defend the routine violations of children’s civil liberties in the name of “child protection.”

Similarly, some liberals who would never think it’s o.k. to throw a passenger off a plane just for speaking Arabic will gladly seek to instill paranoia in our children – and even promote the extremely dangerous practice of defensive driving – again, in the name of “child protection.”

After all, they will say, a child abuse investigation is different – it’s done to protect the child.  But infringements against civil liberties almost always are justified by invoking noble goals – that’s why defending civil liberties often is unpopular.  That sheriff in Georgia could argue that he, too, was simply trying to protect children – from the scourge of drug abuse.

All this explains why the due process protections we take for granted in most areas of law are largely absent in child welfare.  But whenever we on the Left betray our principles, we also betray our children.

Read Part Two here

Supreme Court to hear the case for full Fourth Amendment rights for kids

           Tomorrow, the U.S. Supreme Court hears its first major child protective services case in more than 21 years.  We review the issues in our monthly Blog for Youth Today.  And there is a more detailed discussion of the case on this special website.

Supreme Court may decide if “children’s rights” include the Fourth Amendment

“SPECULATION AND HEARSAY” IS NO REASON 

TO TRAUMATIZE A CHILD

For details see our special website devoted to the case, www.camretavgreene.info

What kind of a case would bring together the Southern Poverty Law Center on the left and the Family Research Council on the right?  Or the Battered Women’s Resource Center and the American Coalition for Fathers and Children?  How about National Advocates for Pregnant Women and the Eagle Forum?  The Clinical Social Work Association and the Pacific Justice Institute?

Only a case involving rights so fundamental to the protection of children that some of the most prominent advocates on the left and the right are ready to put aside their differences to join forces.

What all these organizations are seeking is simply a guarantee that innocent children will have the same constitutional rights as suspected criminals.

In contrast, those seeking even more power for child protective services agencies say caseworkers should have the untrammeled power to pull a child out of class and question her for two hours about the most intimate aspects of her life based on no more than, and these are their own words, “speculation and hearsay.”

The U.S Supreme Court will hear arguments in the case, known as Camreta v. Greene on March 1.  It’s the first major case involving the power of child protective services agencies to reach the high court in more than 21 years.

NCCPR’s volunteer vice president, Carolyn Kubitschek is representing the family at the center of the case.  And we’ve built a special website to provide comprehensive information about the case: www.camretavgreene.info

There’s an overview of the case, the story of the child at its center, and links to the 18 separate “friend of the court” briefs filed by 70 organizations and experts in support of the family – including many organizations specializing in representing children in child abuse and neglect cases.

Supreme Court will decide if “children’s rights” include the Constitution’s #4

OR TO PUT IT ANOTHER WAY: DOES A NINE-YEAR-OLD GIRL HAVE AS MUCH CONSTITUTIONAL PROTECTION AS TIMOTHY McVEIGH?

            The U.S. Supreme Court has agreed to hear an appeal by Oregon’s Department of Human Services (DHS) of a ruling by the 9^th Circuit U.S. Court of Appeals declaring that “children’s rights” include the right to be free from unreasonable search and seizure.

            The Court of Appeals also ruled that when a little girl is being stripsearched and having her genitals photographed by a total stranger, she also has a right to have her mother present to comfort her.  DHS doesn’t like that, either.

            So here’s what this case really is about:  Does a child have a right to be free from traumatic interrogations by total strangers when there is so little justification that a child welfare agency can’t even get a warrant?  Do children have a right to be free from weeks of needless foster care when a caseworker may have lied to obtain the right to take the children away? (More on that below.)  And does a young child at least have the right to have her mother present during an extremely traumatic medical exam?

            DHS thinks the answer to all of these questions should be “no.”  You can bet the overwhelming majority of child protective services agencies feel the same way.  Which means DHS and its counterparts really are seeking the the right to inflict nearly unlimited state-sanctioned child abuse.

            Indirectly, the case raises one more issue: Almost all of the questions in dispute in this case could have been quickly and easily resolved if only agencies like DHS were required to tape record all interviews in child protective services investigations – I don’t mean elaborate videotaping, a simple microcassette tape recorder (or digital equivalent) would be enough.

A RULING FOR CHILDREN’S RIGHTS

            The full opinion from the Court of Appeals in the case, now called Camreta v. Greene, is well worth reading, if only because, right at the outset, the court refuses to be suckered by the party line child protective services agencies use whenever they want to trample on civil liberties: The one that says: If you support civil liberties you’re putting parents rights ahead of children’s rights – only if you trample on those liberties are you somehow standing up for “children’s rights.”

The Court of Appeals wasn’t fooled.  On the contrary, the court recognized that  Fourth Amendment (and Fourteenth Amendment) rights are a vital protection for the children themselves.

            Citing a law review article on the topic, the decision notes that:

Of the 3.6 million investigations conducted by state and local agencies in 2006, only about a quarter concluded that the children were indeed victims of abuse. … This discrepancy creates the risk that “in the name of saving children from the harm that their parents and guardians are thought to pose, states ultimately cause more harm to many more children than they ever help.”

            In this case, the family alleges that a DHS caseworker, accompanied by an armed deputy sheriff, went to a child’s school, interrogated the nine-year-old for two hours and badgered her into accusing her father of sexual abuse.  The girl claims she finally gave in to get the interview over with.  The caseworker denies this, saying the interrogation lasted one hour and the statements were made freely.  Too bad there’s no tape recording so we’d know one way or the other.

ECHOES OF McMARTIN

            If these allegations are true, then the tactics are frighteningly similar to the widespread badgering of children during the wave of hysteria over alleged “mass molestation” at day care centers which swept through the country during the 1980s; the McMartin Preschool being the most notorious case.  Nearly every conviction in these cases ultimately was overturned – often because tape recordings revealed how children had been badgered and coerced.  (Sadly, with the passage of time, those abuses are being forgotten and, in some cases, starting to be repeated.)

            In the Oregon case, the family alleges that the illegal, warrantless interrogation set off a cascade of other errors, though it is not clear if the Supreme Court will be reviewing those as well. [UPDATE: The Supreme Court will review only the issues surrounding the initial interrogation of the child.  That's good news - it means the Court of Appeals' excellent ruling on the subsequent issues discussed below is not being challenged.  Now the question is whether child welfare agencies in Oregon, California and the other western states where the ruling is binding will, in fact, obey the law.]

         

            ●After the interviews, the caseworker went to the mother and said she had to kick Dad out of the house during the investigation or he’d take away the children.  Mom says she told the caseworker this would be difficult for her but she’d do it.  The caseworker went to court and claimed Mom said exactly the opposite.  It appears somebody lied – and once again there is no tape recording.

            ●Then the caseworker ordered the nine-year-old and her sister to undergo sexual abuse examinations at a place called the KIDS Intervention & Diagnostic Service Center.  In other words, the children were stripsearched, had their genitals photographed and so on.

            Mom wanted to be with the children to comfort them.  But, in what the family alleges was a violation of the mother’s – and the children’s  - Fourteenth Amendment rights, the caseworker banned mom not only from the room, but from the entire building.  (On this, it appears, there is no dispute.)

            In an affidavit, the child says:

“I wish my mom could have been there. I felt very scared and alone . . . . [T]hey looked all over my body, and it was very uncomfortable.”

And, indeed, the 9^th Circuit, at least, has recognized as much.  Citing a previous decision by the same court, this decision declares that:

“children have a … right to the love, comfort, and reassurance of their parents while they are undergoing medical procedures, including examinations — particularly those ... that are invasive or upsetting. The interest in family association is particularly compelling at such times, in part because of the possibility that a need to make medical decisions will arise, and in part because of the family’s right to be together during such difficult and often traumatic events.”

The KIDS Center assessments involved the visual inspection and photographing of the children’s genitals. This process could certainly be emotionally traumatic to a young girl. …The children’s right to their mother’s comfort and their mother’s right to provide such comfort were thus at their apex. [Emphasis added.]

            Ultimately the KIDS center said it “could not determine” if the children had been abused.  (Some “experts” have a policy of never saying there was not abuse, instead declaring either there was abuse or it’s undetermined; I don’t know if the KIDS Center has such a policy.)  After about three weeks of foster care, the children were returned home.

It is not clear where the father was then or now.  The decision notes that he accepted a plea deal in connection with alleged sexual abuse of another child. (He maintained his innocence, but acknowledged there was enough evidence such that a judge or jury could convict).

            The KIDS Center report also said they worried that the nine-year-old might have recanted her claims “in an attempt to expedite her return home.”

            If so, then that, too, is DHS’ fault.  The agency undermined its own investigation by removing the children.  Had they simply acted to expel the alleged abuser from the home, and never placed the child in foster care, then the child might have been more willing to “disclose” abuse, if indeed there was any.

THE McVEIGH STANDARD

            You can bet that DHS and its allies will pull out all the stops in trying to scare the Supreme Court into overturning this ruling. They will try to paint a picture of investigators hamstrung by supposedly having to have alleged abusers in the room when children are interviewed or having to get their permission to interview a child.

            Neither is true.

            The court ruled only that DHS is subject to the same limits imposed on police when they are hunting down a child murderer. – like, say, Timothy McVeigh, the terrorist who blew up the federal building in Oklahoma City.

            In the process, he blew up a day care center, killing 15 children; four more died elsewhere in the building.  In order to track down, capture and develop evidence needed to convict McVeigh, the FBI needed to search a car he used, his father’s home and his sister’s home.  In every case, they did what the Constitution requires – they got a warrant first.  (And, by the way, this isn't the only time the government obeyed the Fourth Amendment even in its pursuit of terrorists.)

            So what the U.S. Supreme Court really will be deciding in this case is whether a young child who might be traumatized by an interrogation, stripsearched and undergo an even more traumatic medical examination has as much protection under the U.S. Constitution as did Timothy McVeigh.

            If the Supreme Court says yes, child welfare agencies still will have the right to interview children out of sight of the parents and without getting their permission.  All they have to do is call up a judge and explain why there is “probable cause” that the child has been harmed or is at risk.  They don’t have to wait for the parents to mount a defense – they don’t even have to go to court in person.  Indeed, the great irony in this case is, had DHS simply asked for a warrant, they almost certainly would have gotten one.  In this case there was, indeed, enough reason to suspect abuse to warrant questioning the child (though not badgering her, as she alleges).

            Furthermore, there is always an exception under the Fourth Amendment for “exigent circumstances” – meaning, in child abuse situations, the child is in imminent danger, or the family might flee, for example, and there is no time to get a warrant.

            In this particular case, however, three days passed between the receipt of the report and DHS showing up to interview the child – so it would appear the circumstances were not “exigent.”

            Had DHS simply agreed to abide by the Fourth and Fourteenth Amendments, it could have taken the Oregon taxpayer money it is spending litigating this case all the way to the Supreme Court and spent it on something more useful.  I’m sure the legal fees would more than equal the cost of, say, a cheap little tape recorder for every DHS caseworker.

            In short, there is nothing in the Fourth Amendment of the Fourteenth Amendment that stops DHS and its counterparts around the country from protecting children – at most, these Constitutional protections may curb DHS’ power to traumatize the children it is supposed to protect.

UPDATE: In the days since this first was posted, the family victimized by Oregon DHS has retained NCCPR's volunteer Vice President, Carolyn Kubitschek, to argue their case before the Supreme Court.