UPDATED: Some of the most liberal Democrats in Congress want to spend up to $500 million MORE on policing Black communities – and they may not even know it

Senators Elizabeth Warren and Bernie Sanders are among the sponsors of a
"yuuuuge" coronavirus relief package that includes many good provisions - but
also up to $500 million more to police poor communities of color -
but of course it's not called policing.

This post has been updated to discuss the newly-released text of one of the alternatives to the bill cosponsored by Senators Warren and Sanders.
          

             In times like these, as we finally are forced to come face-to-face with what overpolicing does to impoverished communities of color, who in the world would want to spend even more money on such policing?

            Some of the most liberal members of Congress, that’s who.  People such as Sen. Elizabeth Warren (D-Mass.) and Sen. Bernie Sanders (D-Vt.), along with 16 other Democratic senators. (One of NCCPR’s founders, the late Elizabeth Vorenberg, was a longtime friend of Sen. Warren.)  

            Other Democrats are sponsoring a separate bill that is better. That bill apparently gives child protective services new money to spend on real prevention or on policing or on both.  Unfortunately, it's not hard to guess what most child protective services agencies will choose.

            This is happening because of a fundamental failure among my fellow white liberals: the failure to face up to the fact that child protective services agencies are a police force – and their power to oppress individual families, and entire communities of color, is as great, if not greater, than that of the police who wear blue uniforms.

CPS investigators have more power than police.  Effectively, they can enter homes and stripsearch children without a warrant. Say no, and they can come back with the police and even break down the door. Even when the entry is less drastic, the terror of the investigation is something a child may never forget.  More than half of Black children will endure such terror during their childhoods.  That’s best case. Worst case: the CPS caseworker takes away the children on-the-spot without so much as asking a judge first.

Almost always, the trauma is inflicted on all these children for nothing – the report was false.  In most remaining cases the alleged problem is neglect – which often means poverty.

As the Movement for Black Lives explains:

The child welfare, foster, and family court system (“the foster system”) is thus a major site of policing, control, and punishment of poor Black women, starting at conception. 

Many white liberals have been blind to this. They persist in thinking of CPS agencies as benevolent helpers.  In Black communities they know better. As Kendra Hurley wrote in Citylab:

Some parents living in neighborhoods with historically high rates of child welfare investigations say the dramatic dip in maltreatment reports [due to COVID-19]  feels more like the pollution lifting — a much-needed respite from the intense and relentless surveillance of low-income moms, and especially those who are black and Latinx. …

One parent told [family advocate Joyce McMillan]: “They’re not opening my refrigerator. They’re not opening my dresser drawers. They’re not strip-searching my children and they’re not asking me to take their clothes off for the camera, because that would be child pornography.”

Similarly, Eli Hager writes for The Marshall Project:

            "Poor people are usually constantly inspected by all these agencies,” [one mother] said. “Now there is kind of a peacefulness.”

But this isn’t new. In a rare examination of this other police force in 2017, The New York Times documented case after case of bias in the system, calling foster care the new “Jane Crow.”

One other problem with the child welfare surveillance state: It hasn’t stopped child abuse.

On the contrary, workers are so overloadded with false allegations and cases in which family poverty is confused with neglect that they have no time to investigate any case properly – and that is almost always the real reasons for the extremely rare horror stories that make headlines.  At the same time, if poor people need help, they must seek it from people mandated to turn them in to the child abuse police. That, of course, makes them reluctant so seek such help.

The child welfare surveillance state, with its take-the-child-and-run approach to child welfare makes all children less safe.

What the bill would do

            Yet now, even as many on the Left say we should  “defund the police,” some of America’s most liberal senators are pushing the federal government to spend up to $500 million more on the child abuse police. The $500 million is part of a bill that also includes another $1 billion in child welfare spending that is problematic because of  the funding stream that must be tapped in order to get it.

            All of this money is a small part of a yuuuuge spending bill - $430 billion in all - to cope with the effects  the effects of COVID-19.  Of that amount, I,  and I suspect most other liberals, would probably favor the way the sponsors propose to spend at least $428.5 billion.  That’s because none of that money goes to furthering the overpolicing of poor communities.

            But up to $500 million would be spent, via the Child Abuse Prevention and Treatment Act (CAPTA), to “support child welfare workers in preventing, investigating, and treating child abuse and neglect …”  This $500 million is specifically targeted toward the child abuse police, the investigators who exercise the vast powers described above. The way they “treat” child abuse often is by tearing apart families or placing them under onerous, harmful surveillance.

            But that’s not the only problem. These funds are funneled through  the worst part of a bad law, Title I of CAPTA.  CAPTA was, literally, designed to avoid facing up to the issues of racial and class bias that permeate child welfare. 

              CAPTA codifies everything wrong with America’s approach to child welfare. CAPTA encourages the failed system of mandatory reporting. CAPTA encourages the use of Court-Appointed Special Advocates, a program that studies have found to be a failure, and which entrenches racial and class bias in child welfare. CAPTA encourages blacklists of alleged child abusers that are far too easy to get on and far too hard to get off – causing enormous additional hardships for impoverished families.

And CAPTA encourages laws and policies that terrorize pregnant women away from seeking prenatal care, and inflict needless foster care on children during precisely the time in their lives those need their families most – their infancy  (The Senate bill also includes another $1 billion via Title II of CAPTA, which has less onerous requirements.)

            That’s why groups such as Movement for Family Power call for repealing CAPTA. 

The only thing that has prevented CAPTA from having an even more devastating impact on communities of color is the simple fact that there is not much money in it, so there is not much incentive for states to knuckle under to its mandates.  But now, two of the most prominent liberals in the Senate propose to bulk up funding for an odious law that leaders of color want repealed.

How did this happen?

Neither Warren nor Sanders specializes in child welfare issues, and the child welfare component is a tiny part of a much larger spending bill.  And, as noted above, many on the Left – the white Left, at least, can’t get their heads around the idea that child protective services is a police force.  Odds are these senators’ staffers saw that the usual liberal child welfare establishment groups, like the Child Welfare League of America, are for it, so that was good enough for them.

But that is no longer good enough.  A predominantly white liberal child welfare establishment have built a system on a foundation of racial and class bias.  (They’ve had plenty of help from an assortment of white conservatives, such as Newt “bring back the orphanage” Gingrich, and Naomi Schaefer Riley, who crusades to tear apart more families from her perch at the American Enterprise Institute.)  No United States Senator should sign on to any child welfare legislation until they’ve actually listened to the communities upon which the full force of that legislation will be inflicted.

Better alternatives

In the short run, here’s what Sanders, Warren and the other Democrats who have co-sponsored this bill could do to genuinely protect vulnerable children:

● Take the $1.5 billion and move it out of CAPTA and into programs that ameliorate the worst aspects of poverty, such as increasing the amount allotted in the bill for child care and providing serious support for housing, which is barely mentioned in the current bill.

A good model can be found in legislation sponsored by two Republicans, Alaska Senators Lisa Murkowski and Dan Sullivan, and  two conservative Democrats, Joe Manchin (D-W.V.) and Kyrsten Sinema (D-Ariz.) Their bill helps to provide what poor families really need in COVID-19  relief to keep kids safe from child abuse and out of foster care: Emergency housing aid, transportation and childcare.

● Four other Democrats also have a bill that would be better – though there’s a catch.  Actual language is not yet available, but it appears that a key provision of the bill would give child welfare agencies $2 billion they could spend either on good things – like transportation, housing and utility payments and/or further policing poor people of color, and destroying their families forever. That’s because this money also could be spent “to expand adoption promotion and support services, or to hire, train and support caseworkers to conduct safe in-person home and remote visits, including the purchase of personal protective equipment and technology.” [UPDATE, JULY 14, 2020: The bill language is now available and the news is pretty good.  For starters, none of the money is funneled through CAPTA.  And the bill says that states "shall expend significant portions of the funds" on a variety of child welfare services almost all of which range from harmless to beneficial, so relatively little would go to the policing functions of child welfare.  However, the bill puts very little emphasis on keeping families together and it implies that if children are placed in kinship foster care with relatives, somehow that is not foster care. It is.]

  ● If Democratic senators absolutely must put the money into programs that are part of the child welfare system, move the $1.5 billion out of CAPTA and into the Promoting Safe and Stable Families Act – specifying that the new funding must go only to the family preservation and family reunification portions of that law.  [UPDATE: The bill discussed in the preceding paragraph does not go that far. It funnels the money through Title IV-B - which includes the Promoting Safe and Stable Families Act, but the funds also can go to adoption and hiring more caseworkers. And, as noted above, the description of services to be funded by that bill says little about family preservation.]

            ● Eliminate the accidental windfall for foster care created by earlier COVID-19 legislation. That legislation increased the percentage of Medicaid costs reimbursed to states by the federal government. That’s a good idea.  But whenever you change that formula for Medicaid it automatically changes the formula for foster care aid as well.  This new bill should roll back the foster care increase, while maintaining it for Medicaid

Child welfare and coronavirus: Foster care’s COVID-19 windfall

Even as almost everyone else sacrifices, federal legislation gives a huge accidental boost to foster care funding.  But the child welfare establishment still isn’t satisfied. They want to scarf up billions more.  Some of what they’re asking for makes sense.  A lot does not.

UPDATE, JUNE 5, 2020: THINGS HAVE GOTTEN WORSE:

Most of what was good in the funding request discussed below was stripped out of the actual bill introduced by several Democratic Senators. Now there's $1.5 billion - all of it funneled through CAPTA.  And, of the $500 million that will be funneled through the worst part of CAPTA, Title I, much of it is specifically designated for child abuse investigations.

There's even a provision providing federal funds to make it easier for states to bypass the minimal due process protections for families in current state laws and force children into hidden foster care with no due process at all - as Oregon is doing now.

In a time of pandemic everyone has to sacrifice – except, of course, the foster care-industrial complex. Big Child Welfare already has reaped a big windfall, and they’re greedily scrounging for billions more.

The windfall may well have been an accident. Explaining how it happened requires another of those trips into the weeds.

The federal government throws billions of dollars at trapping children in foster care through an entitlement program called Title IV-E.  That funding stream has a variety of subsections.  For some of those subsections – including the good ones, such as paying for the cost of lawyers for children and parents – the federal government will simply reimburse the states for half the cost for every eligible child.  (Eligibility is an entire different patch of weeds – you can read about that here.)

But when it comes to IV-E funds for holding children in foster care, the reimbursement rate varies from state to state.  It ranges from 50 percent to more than 73 percent. 

Meet the FMAP

            The determination for each state is not based on anything directly to do with child welfare. States simply get the same percentage for foster care maintenance as they get for Medicaid, the health insurance program for poor people.  The calculation for each state is called the Federal Medicaid Assistance Percentage (FMAP).

           

When Congress passed the Families First Coronavirus Relief Act it raised the FMAP by 6.2 percentage points – not percent, percentage points.  That’s a good idea for Medicaid.  It’s a bad idea for foster care. Now a state that was getting back, say, 60 percent of foster care maintenance costs for every eligible child is getting 66.2 percent – nearly two-thirds of the cost.

            This exacerbates the financial incentive that sometimes exists to use foster care instead of safe proven alternatives that cost less in total dollars, but may cost a state more because it often has to pick up the entire tab.

            So the first thing Congress should do is roll back the FMAP rate increase for foster care, maintaining it only for Medicaid and for IV-E funding that can be used for prevention under the Family First Act.*  I’ll discuss what to do with the savings at the end of this post.

Beyond the FMAP windfall

            But, of course, even the FMAP windfall isn’t enough for the child welfare establishment. Led by the Children’s Defense Fund, which has one of the worst records in child welfare for getting child welfare finance wrong, Big Child Welfare is pushing for more than $3 billion over and above the windfall.  Some of that new spending would make sense. Some would go to good programs. But some would fund good programs in a bad way. And some of the funds would just mean more money for the child welfare surveillance state.

            Let’s start with the good parts. They propose $500 million $1 billion more for the Promoting Safe and Stable Families Program, which I discuss in detail at the end of this post.  There also is a call to spend $500 million to help foster youth “aging out” of the system. Granted, this is largely funding to try to undo some of the damage the system did to these young people in the first place, but we owe it to those youth to try. There also are proposals for small increases to programs to help kinship foster parents and to improve the functioning of juvenile courts.

Relying on CAPTA

            The bad parts have to do both with what is funded and how it’s funded.  Fully half the $3 billion would be funneled through the so-called Child Abuse Prevention and Treatment Act – an odious little law which this proposal would turn into an odious bigger law.

            CAPTA codifies everything wrong with America’s approach to child welfare. CAPTA encourages the failed system of mandatory reporting. CAPTA encourages the use of Court-Appointed Special Advocates, a program that studies have found to be a failure, and which entrenches racial and class bias in child welfare. CAPTA encourages blacklists of alleged child abusers that are far too easy to get on and far too hard to get off – causing enormous additional hardships for impoverished families. And CAPTA encourages laws and policies that terrorize pregnant women away from seeking prenatal care, and inflict needless foster care on children during precisely the time in their lives those need their families most – their infancy. 

            CAPTA’s only redeeming feature is that it speaks loudly but carries a small stick.  Because the amount it awards in grants is relatively small, there is relatively little incentive for states to do the harm that CAPTA demands (though many states gladly inflict such harm anyway).

            By proposing to funnel $1.5 billion in additional funds through CAPTA, CDF and other groups are increasing the temptation for states to do things like enact “Plan of Safe Care” provisions – classic Orwellian child welfare-speak for harassing pregnant women who do things such as smoke marijuana to ease the pain of labor or take legally-prescribed medication as part of treatment for opioid addiction.  Bolstering CAPTA also impedes efforts to, at long last, reconsider failed approaches such as mandatory reporting laws.

            There are, however, ways to salvage the additional spending by channeling it into better alternatives.

Title by title

            CAPTA has two titles. Title I is the more troublesome.  The demands to do all the cruddy stuff CAPTA requires apply to getting money under Title I. 

            As for what states can get, what is so striking about the programs eligible for funding is what a hot mess this whole title has become.  It’s an incoherent jumble of projects that appears to have been cobbled together based on who could get the sympathetic ear of a powerful member of Congress for their pet program.

           

There’s a huge list of topics eligible for “research” grants.  Most of them are likely to accomplish nothing except help social work professors get tenure.  At least one is so narrow it reads as though it were written just to accommodate someone’s specific proposal.

            This title also includes grants for various services. There are a couple of good ones, but also a lot of the  usual “help” that primarily helps the helpers and can actually make things worse for families. 

            CDF wants to pour $500 million more into this title alone.  That would be a big mistake. Most of that money almost certainly would go to a combination of pointless research and further bloating the child welfare surveillance state.  If the only choices are spending $500 million on Title I of CAPTA or not spending the money at all, the less detrimental alternative is not to spend the money at all.  I will suggest other options below.

            CDF wants to spend another $1 billion on Title II of CAPTA. That is less problematic. States can get Title II funding without having to comply with all the awful requirements to harm families that are required to get Title I funds.  And the types of programs eligible for this funding include some that are marginally useful and, it appears, none that does actual damage.  So Title II passes what I call the Hitchhikers Guide to the Galaxy test: It’s mostly harmless.

            But the act of pumping more money into any part of CAPTA bolsters its prominence and the influence of its ugly mandates. So it’s still a bad idea to funnel money through CAPTA.

Better ways to spend $2 billion

            There are ways to use $2 billion that really will help prevent child abuse.  The best approach of all would be to just send cash.

            Over and over we’re reading about how supposedly, because COVID-19 will plunge more people into poverty, they will take it out on their children.  And that, of course, is on top of the massive confusion of poverty with neglect even in normal times.

            Given the extent to which the problem is poverty, you don’t suppose the solution might be – money?  As a matter of fact, yes. 

Study after study has shown us the transformative power of cash, especially when social workers don’t get in the way.  So the best use of an extra $2 billion would be in the form of a fund targeted toward families considered most at risk of what the system calls “abuse” or “neglect.” Those funds could be used to provide emergency cash for things like child care, housing, and other basic necessities.    This kind of approach, known as flex-funds, is at the heart of the pioneering reforms that helped transform child welfare in Alabama.

            Since Congress is not likely to go for that, the second best option would be, again, to put the money into the federal government’s only funding stream that is, mostly, geared to prevention and family preservation, not punishment and surveillance: the Promoting Safe and Stable Families Act (PSSF) which is part of a funding stream known as Title-IVB.

            Those funds can be used for family support, family preservation, reunification and adoption.  But no, adoption can’t scarf up the whole pie; at least 20 percent of funds must be spent in each category – and, in fact, states have, on average divided the funding fairly evenly across the four categories.

            Most notably, in the most difficult cases, where cash alone is not enough, both PSSF money and Family First money can be spent on the Homebuilders Intensive Family Preservation Services program.

The clearinghouse for determining if programs are sufficiently “evidence based” to get funding under Family First has given its highest rating Homebuilders.  Two other clearinghouses also have given the program high ratings. These NCCPR Issue Papers explain what Homebuilders is and the mass of evidence that it works

The very term “family preservation” was coined to apply to this program, which dates all the way back to 1974. It had the potential to transform child welfare.  For that very reason it was marginalized, thanks to a smear campaign by the child welfare establishment. Needless to say there is no mention of Homebuilders in CAPTA.

Still another good use for $2 billion would be a fund for drug treatment, with an emphasis on programs in which parents and children can live together, including in-home treatment.

Aside from simple payments of cash, it’s hard to imagine a better use for $2 billion in new child welfare spending than Homebuilders and drug treatment.

A chance to do better

The massive dislocations caused by COVID-19 are an almost unimaginable tragedy.  But this also is a chance to reimagine child welfare and make it better.

During an American Bar Association Webinar last week, Jerry Milner, who runs the Children’s Bureau in the Department of Health and Human Services, said that after the crisis is over “We’re not going to go back to normal – that’s good. Our normal wasn’t working.”  Said his Special Assistant, David Kelly: “This crisis is an opportunity to awaken collective compassion and better see ourselves in the families and young people we work with ... It's a defining moment; we can seize it."

 It is a testament to the lack of courage, imagination and vision from the child welfare establishment that they have no interest in seizing the moment to make the system better.  All they can think of are ways to make the same lousy system even bigger.

*-According to CDF, Family First funding only gets a 50 percent match. It won’t be reimbursed at the FMAP rate until 2027 – one more illustration of the real priorities in American child welfare.

CAPTA strikes again: Pennsylvania makes sure it conforms to an odious federal law -- and promptly begins harassing families where moms use legally-prescribed medical marijuana

Last year, the Pennsylvania Legislature threw one of its periodic collective fits of mass hysteria and demagoguery over child abuse.  The lawmakers made even more draconian its state law concerning newborns “affected” by parental substance use. 

The old law, which was bad enough, required hospitals to report to authorities any mother whose alleged use of an illegal substance “affected” the newborn.  Now it’s legal substances as well.  The change was cheered on by a Philadelphia Inquirer reporter who sank to “crack baby journalism.” 

Meanwhile, the legislature also legalized medical marijuana.  I’ll bet you’ll never guess where this is going.

Meet Shanelle Dates.  As the Wilkes Barre Times Leader explains in this story, she was prescribed marijuana while pregnant in order to deal with “several gastrointestinal conditions, anxiety and post-traumatic stress disorder. The cannabis also eliminated her need for an antidepressant, she said.”

The marijuana replaced a toxic cocktail of prescription drugs which actually could have harmed her fetus, according to her gastroenterologist. 

Doctor after doctor signed off, assuring Dates she was doing the right thing. 

Had Dates been white and affluent there would, of course, be no issue. Such moms can smoke pot with impunity – they can even brag about it on Facebook.

But, as you’ve probably guessed even without clicking the link to the Times Leader story, Ms. Dates is neither. 

Even nonwhite mothers using medical marijuana might have been spared the trauma to themselves and their children of a child abuse investigation under the old Pennsylvania law. According to the Times Leader, that law specifically said hospitals did not have to report mothers when a mother “was under the care of a prescribing medical professional and complying with that professional’s prescription directions.”  (They still had the option to report, but at least it wasn’t a requirement.)

But Pennsylvania lawmakers have shown over and over again that they’d much rather posture about supposedly “cracking down on child abuse” than actually do anything to make children safer.  So they amended the law – exposing children to the needless trauma of child abuse investigations, and in the process making all children less safe.  The details on how and why the change compromises child safety are in this previous post.

This is almost certainly why Dates was investigated.  Her children were not removed, but children have been taken in other medical marijuana cases, according to Sabrina Smith, who runs a support group for medical marijuana users in Pennsylvania.  And harassment of poor parents who smoke pot is common across the country.

Conforming to CAPTA

When it comes to state laws making life harder for children and families, Pennsylvania is not alone. In fact, the change in Pennsylvania law brings it into conformity with the Child Abuse Prevention and Treatment Act, an odious federal law that, with each new iteration, ratchets up the harm done to children.

In that earlier post I discussed how the specific provisions about drug use by pregnant women got into the law:

The [Philadelphia Inquirer] story cites the former Pennsylvania congressman James Greenwood, who sponsored amendments to the federal Child Abuse Prevention and Treatment Act requiring reporting all mothers of infants “affected” by prenatal drug exposure to child protective services so they can develop a “plan of safe care” for each child. (If states choose to take a wiser approach and not blindly follow the CAPTA mandate, they only risk losing a relatively small amount of federal money.)

The story notes how Greenwood stressed that 

the goal is to help families, not target struggling women.  “In crafting the federal law, I never envisioned that the ‘referral’ from a health care provider was the same as a child abuse report,” said Greenwood, a former child protection caseworker.

 This is, at best, hopelessly naïve. When a doctor picks up a phone and calls the agency that investigates child abuse reports to report that a mother’s newborn is “affected” by her drug use, you may be sure the agency that investigates child abuse reports will treat it as a child abuse report, and act accordingly.

Turns out I was being too optimistic. 

In Pennsylvania calls alleging abuse are taken by a statewide hotline and are then referred to county child protective services agencies.  But the Times Leader stories make clear that the state implemented the change in Pennsylvania so incompetently that there is, apparently, no way for the county agency receiving the report to know if it’s a formal, official “child abuse” report or a not-quite-as-official “here’s a heads-up about a drug-using mom” report.

But don’t expect the Pennsylvania Legislature to fix its latest blunder anytime soon.  Pennsylvania lawmakers can’t seem to think past the next press release.

NCCPR in Youth Today on the little law that couldn’t

The law is the so-called Child Abuse Prevention and Treatmente Act (CAPTA).  It codifies everything wrong with how we “fight” child abuse.

The idea of using CAPTA as the organizing framework for coping with child abuse, or even thinking about it, is absurd. And the notion that somehow a more powerful CAPTA with more money and more enforcement would somehow help children is profoundly dangerous.

Read the full column in Youth Today here.