Prof. Shanta Trivedi on a bill that “puts marginalized families on an equal footing with their more privileged counterparts.”

Witnesses testify in favor of the Maryland "Know Before They Knock" bill.
You can watch the entire video here.

If you don’t know your rights, you don’t have your rights. When impoverished families hear that pounding at the door in the middle of the night from a worker for child protective services, often they don’t know their rights.  

A lot of CPS agencies want to keep it that way.  But five states have passed what are commonly known as “family Miranda laws,” requiring the agency to tell families their rights – including their right to consult a lawyer.  In Maryland, a bill to do that, HB 223, is called “Know Before They Knock."  It was the subject of a hearing before the Maryland House of Representatives Judiciary Committee last week.  It’s well worth watching the hearing, available here. 

Below, I’ve reprinted the testimony of one of the many witnesses speaking in favor of the bill. 

Prof. Shanta Trivedi teaches and writes about the child welfare system at the University of Baltimore School of Law. She is the faculty director of the Meyerhoff Center for Families Children and the Courts. She has also represented parents who have had their children removed without knowing their rights. [Emphasis in original]: 

Imagine CPS knocks on your door in the middle of the night.  They say that they’re going to search your home. They will search your medicine cabinet, your bedroom.  They’ll ask questions about your romantic partners, about how many glasses of wine you have each week.  They’ll ask to speak to your children without you being present and to inspect their naked bodies. How would you respond? Welcome them in? I doubt that. I know that I would tell them come back with a warrant, and I would call a lawyer immediately, because I know my rights. You know your rights.  But, of course, not everyone does. 

This bill simply puts marginalized families on equal footing with their more privileged counterparts.   This bill would establish that constitutional protections apply in child welfare investigations and would allow parents to make informed decisions throughout the process. 

To date, Connecticut, Texas, Florida, Montana and Arizona have all passed these laws and New York and Delaware have introduced similar legislation.  The question is whether we want to join those states in respecting parental rights for ALL parents or just for the privileged few. 

Rather than making children less safe, states that have passed similar laws have found that they keep children safer because transparency from the agency encourages families to be more forthcoming.   Further, the law already provides for law enforcement and DSS to be able to enter in emergency situations.  This bill would not change this. 

I know that opponents do not want DSS to be perceived as a policing agency but unfortunately, many parents already feel this way because of the intrusive nature of investigations and the threat that their children can be taken. Regardless of what the perception is, the fact remains that removing one’s child directly impacts both the parent and child’s rights to family integrity and the parent’s right to care, custody and control of their children.  This is true regardless of whether the police do it or if DSS does it.  Whether or not we advise parents of how to protect those rights, they still exist.  

The goal of the child welfare system is to protect children, and research shows that most children do best with their families. Because I believe this bill is an important step toward protecting family integrity. I urge you to support HB223.

P.S. I just caught up with Sunday's edition of Last Week Tonight with John Oliver. In the course of discussing immigration raids he said something that could apply to any government agency that pounds on people's doors in the middle of the night and demands entry:

Betrayal in Baltimore

This one really stinks.

Of all the child welfare class-action lawsuit settlements around the country, one of those that has dragged on the longest concerns Baltimore. It was already well underway when I cited it in my book, Wounded Innocents, which was published in 1990.

It wasn't one of the better settlements, in part because there was less experience with this kind of litigation back then. And, as so often happens, the child welfare agency in Maryland, the Department of Human Resources, stalled and stalled rather than meet its obligations.

Then, just a few weeks ago, on June 23, a breakthrough: The two sides negotiated a smarter, slimmed-down consent decree. Unlike the original, this one emphasized family preservation. And, back in June, there was some reason to believe that Maryland was serious about compliance. That's because a new leader of DHR, Brenda Donald, already had shown some of the right priorities. She began closing group homes and reducing entries into foster care – though in recent months they've started to go back up again.

It sounded like an enlightened child welfare leader genuinely committed to working with advocates. It wasn't. In fact, it was just a tactic – a bit of expedience to create a veneer of cooperation. That became clear when an opportunity opened up to weasel out of the deal – and DHR raced to double-cross the advocates.

Two days after the agreement was reached, the U.S. Supreme Court handed down a decision concerning a class-action suit in Arizona. Though that lawsuit was unrelated to child welfare, the Maryland Attorney General's office thinks it may be able to use the decision to worm its way out of the agreement his state just signed. And that's just what they're trying to do – apparently with Donald's encouragement.

In most states, the Attorney General acts as the lawyer for state agencies. That means the agency is the client and can tell the Attorney General what actions it wants taken on its behalf. In other states, the Attorney General can act without the agency's blessing and even against its wishes. (That used to cause a lot of problems in Utah, for example, though in recent years the human services agency and the attorney general's office there seem to have reached a truce.)

But either way, Brenda Donald had one obligation so simple, so fundamental that it shouldn't be necessary to explain it here: When you make an agreement you keep your word. In letter and spirit. Period. End of story. So Donald's obligation here was either to order the Attorney General's office to knock it off or, if she lacks that power, speak out forcefully against the attempt to weasel out of the agreement. She did neither.

On the contrary, her comments to The Daily Record, a Baltimore legal publication suggest she's thrilled with this turn of events. Donald told the record:

"I do want the ability to drive this reform agenda and to allow my extremely capable director [in Baltimore] to run her own agency without court oversight and without paying millions of dollars in lawyers' fees and taking hundreds of hours to go over fine points.

In fact, a hallmark of this new agreement was that it was not bogged down in fine points, precisely because the lawyers who brought the suit thought they were dealing with someone they could trust. But that's actually beside the point. The issue is: Brenda Donald gave her word on behalf of the State of Maryland. Then, she encouraged the state try to break it as soon as a chance presented itself. Therefore, the burden of proof rests with Brenda Donald to explain why she should ever again be trusted.

And since being in foster care already means one betrayal after another, the worst possible message to send to young people in the system is that the adults who have a responsibility to care for them will , at the first opportunity, weasel out of that obligation.

What all this reveals is the Achilles heel of even some reform-minded child welfare administrators: A particular kind of arrogance that says, in effect: "Accountability may be needed for bad child welfare administrators, but I'm one of the good guys. I believe what you believe. I won't abuse my power. So why should anyone bother me with all that pesky court oversight?"

This kind of arrogance also comes through in the barely disguised contempt too many child welfare administrators have for unions. And it's why some child welfare leaders who are good about bolstering services for families are less keen on bolstering due process protections. Both unions and due process are seen only as impediments to allowing them to Do What's Right.

But I've never seen a case quite this extreme. I've never seen a child welfare leader actually say, in effect, "trust me, we'll do this on our own" right after, at a minimum, standing by and cheering while others in state government stabbed her erstwhile partners in the back.