In child welfare, possession is 9/10 of the law – if you know the loopholes

 

There is so much in this brilliant story by Sandy West in the Texas Observer that it’s hard to know where to start. 

The centerpiece of the story involves representatives of private agencies, sometimes licensed, sometimes not, sometimes nonprofit, sometimes not, suddenly showing up and offering contracts to new mothers, sometimes just days after giving birth. The contracts, may or may not be in a language the mother actually can read. They involve the mother giving temporary custody to someone chosen by the agency.  At least it’s supposed to be temporary. 

But that isn’t the worst of it. 

The worst is how easy it is for middle-class foster parents handed these children to exploit legal loopholes, go into court and say, in effect: “We’re better people than this child’s parents, so we should get to keep the child!” They can do it even when the private agency objects. They can do it even when the state family police agency objects. 

It’s one more example of the ugliest of family policing realities: attempts by those with enough money to step right up and take a poor person’s child for their very own. 

In one of the two cases examined in the story, this happened: 

At the hearing, [Judge] Fisher said the Louisiana couple would be ineligible to sue again for custody based on their time caring for the child while the state sought another placement. 

“If that were the case, I could go kidnap a child from the playground and keep it for six months and then file for adoption,” Fisher said, per the court transcript. “They don’t have permission to have the child, so they don’t have standing.” …

But the Phillipses have continued their efforts to terminate the teen’s parental rights and adopt her daughter ever since, court records show. 

Texas is not even the worst. Many states formally allow foster parents to “intervene” if they’ve had a foster child for long enough, a practice exposed by ProPublica and The New Yorker.  This year, Indiana lawmakers even made this odious practice easier.

The Texas Observer story points to other issues: 

● This is still another form of hidden foster care. Such placements have even less in the way of due process protections than official, openly-acknowledged foster care. And these placements are not counted as entries into care, making a state’s foster care numbers look artificially low. 

This is at least the second form of hidden foster care discovered in Texas. The placements described in the Texas Observer story are in addition to the many so-called “parental child safety placements” in Texas.  Were “parental child safety placements” counted as foster care, which, for all intents and purposes they are, they would nearly triple the number of children reported torn from their parents in Texas every year. 

● This also illustrates the danger of various forms of what should be called sugar-frosted foster care.  That’s when private organizations, such as Safe Families for Children, offer to help impoverished families by finding volunteers to take in their children, as opposed to, say, finding volunteers to help ease their poverty. There is nothing nefarious in it. Those running the program have the best of intentions and they don’t try to trick or coerce anyone. But it’s open to the same sorts of abuses if a volunteer “safe family” decides they want to keep the child for their own and either goes to court or simply calls child protective services.

Points of no return

Here are some of the other states with child welfare systems so rotten that the vast majority of foster children are never allowed to go home.

The previous post to this Blog highlighted Virginia’s dismal distinction: worst in America for allowing foster children ever to return to their own homes. In Virginia, if you’ve been taken away from your parents, odds are nearly three in four you will never be able to return to them – unless you find them again when you’re an adult. 

Virginia’s rate of reunifying families is 27%. The national average is 44% - which itself is dismal. Virginia children are more likely to be torn from their parents forever and handed over, usually to total strangers, to keep through adoption than they are to go back to their own homes.  And Virginia’s contempt for families runs so deep that child welfare agencies will let nearly one in five foster children “age out” with no home at all, rather than exert any real effort to reunify families. 

But while Virginia wins for worst record in the nation, there were plenty of other contenders. Here are some of them: 

● Virginia may not be #1 for long. North Carolina is nearly as bad – only 30% of foster children get to return home.  And right now, North Carolina lawmakers are patting themselves on the back for supposedly passing a major “reform” bill.  While some provisions may be marginally helpful, what may be the most significant will make it even harder to reunify families. 

● Like Virginia, Michigan is triply dismal.  Only 35% of foster children are reunified, while 41% are adopted. And Michigan is another state where the proportion of children who age out with no home at all is nearly double the national average. 

● Much the same can be said for Ohio – except that the adoption percentage is lower. 

● Connecticut did good work in past years in reducing entries into foster care. But lately, there’s been backsliding. In 2023, Connecticut was one of the few states where the number of children taken from their parents over the course of a year increased over the previous year, and it was the second-highest increase in the nation. A huge proportion of the children Connecticut took – more than two-thirds -- probably are never going home. Connecticut is another state where the proportion of children exiting to adoption, usually by strangers, is higher than the percentage reunified. 

● There is a similar pattern, though not as bad, in Alabama, another state that saw great progress in past years, but now is backsliding. 

● Texas has made ongoing commendable progress curbing entries.  But here, too, nearly two-thirds of those taken will never go home. And in Texas, nearly as many are adopted as reunified. 

Guardianship is no excuse 

Some of these states, such as Connecticut, may claim their rates of reunification are low because they supposedly place a lot of children in guardianship arrangements with relatives.  Yes, that’s better than adoption by strangers, but: 

● It is not the same thing as being allowed to go home to your own parents.

● The fact that many of these states use formal adoption – which usually means strangers – at a rate nearly as high or higher than reunification suggests they’re not doing enough with guardianships either.

Texas’ Chief Justice: “When the State goes to court to take somebody’s children, it’s not opening up a collaborative therapy session.”

Texas Chief Justice Jimmy Blacklock

This is probably the first time I've ever agreed with Texas Chief Justice Jimmy Blacklock. There's a good chance it may never happen again.  But there are data to back up his words. 

Blacklock ended his State of the Judiciary Address with some remarkable comments about the new Texas laws curbing the power of the family police. And he called for limits on terminating children’s rights to their parents – a more accurate term than termination of parental rights. 

You can watch what he said here.   

Here’s the text of that portion of his remarks: 

Using the coercive power of the State to take children from their God-given parents—to destroy a family—should never be our first instinct. It should ALWAYS be our very last resort. I want to thank the Legislature for requiring DFPS to keep more families together. Senator Kolkhorst, Representative Dutton, and others have been leaders on this, and I urge you to continue those efforts this Session. 

One suggestion is to repeal what we call subsection (O)—it’s section 161.001(b)(1)(O) of the Family Code, and it allows a parent’s rights to be terminated forever if the parent fails to check every box on a long list of things the state wants them to do to get their child back. The thing is—there’s another provision that allows termination of rights if the parent endangers the child. So, the State only needs to use subsection (O) if it can’t prove that the parent has endangered the child. But if the State can’t prove that, then why on earth would we destroy that family? 

Termination of parental rights is the civil death penalty. When the State goes to court to take somebody’s children, it’s not opening up a collaborative therapy session. It’s initiating adversarial litigation of the highest stakes imaginable. We need to do more to ensure that desperate parents in these cases have vigorous representation, and we need to make sure the Family Code doesn’t stack the deck against the parent before the case starts. Repealing subsection (O) would be a good start. Representative Dutton has a bill that would do this, and I commend his bill to your consideration. 

As I said, his remarks are bolstered by data.  As KSAT-TV reported in this story and in this one, the latest state data show that in state fiscal year 2024 child abuse deaths in Texas continued to decline.  And reabuse of children left in their own homes remains lower than before the new laws were passed.

The failure of the child welfare McLawsuits, Part One

There have been years of court hearings, orders and, in one case, even a settlement and a declaration of victory.  But things in Texas and Tennessee are as bad, or worse, than ever. 

Instead of making the dreadful Texas "child welfare" system better,
"Children's Rights" and "A Better Childhood" set off what amounts to
a giant game of whack-a-mole.

News from Texas and Tennessee in recent weeks illustrate the futility – or worse – of those massive McLawsuits brought against “child welfare” systems, mostly by two groups, the one founded by Marcia Lowry (with a lot of help from corporate raider Carl Icahn) called “Children’s Rights” (CR) and the one founded by Marcia Lowry when she split from Children’s Rights and formed a group called “A Better Childhood.” 

I call them McLawsuits because they’re like fast food franchises – nearly identical massive class-action lawsuits that say pretty much the same things, call for the same micromanaging remedies, and, most important, ignore the problem at the root of all the others – the needless removal of children, often when poverty is confused with neglect. 

That’s why, in most cases, they accomplish nothing, and in some cases they make things worse.  In Michigan, where CR has a consent decree, Prof. Vivek Sankaran, director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University of Michigan School of Law says the best thing CR could do would be to get out. 

With Lowry’s departure, CR changed a lot and for the better.  They now have an outstanding public policy arm that has joined groups like NCCPR in calling for progressive changes such as radically curbing the use of institutions and facing up to the racism that permeates family policing.  But that can actually put the public policy arm of CR at odds with the litigation arm. 

For example: The public policy side has wisely joined NCCPR and other family advocacy organizations in condemning the so-called Adoption and Safe Families Act - putting it way ahead of other big, mainstream “child welfare” groups.  But CR’s lawsuit complaints in Texas and in Michigan call for stricter enforcement of ASFA! 

So let’s see how that’s all been working out lately.  In part two, we look at Tennessee.  We’ll start today with Texas: 

When Lowry “divorced” CR to create A Better Childhood each group got custody of some of the McLawsuits underway at the time of the split, with one exception.  They share custody of the one in Texas. 

The one thing the McLawsuits do well is offer thorough, vivid descriptions of how awful “child welfare” systems typically are.  In January 2016, I described federal judge Janis Jack’s first decision in favor of CR as a guided tour of the hellscape of Texas foster care.  Not that this was a surprise.  Nearly 12 years earlier, NCCPR documented the same hellscape in a comprehensive report on Texas “child welfare” – and that report relied on the work of  Texas journalists and advocates who had come before us.  

There are two differences between our report and CR’s McLawsuit: 

● We proposed better solutions.

● We didn’t have a court to enforce those solutions. 

CR and A Better Childhood have no such excuse.  Despite all the might of these two organizations, their high-powered law firm partners and a sympathetic judge, Texas “child welfare” is still a hellscape – as we predicted it would be in 2016. 

In fact, what CR and A Better Childhood set in motion in Texas is a giant game of whack-a-mole.  The lawsuit demanded that hellacious institutions be fixed up or shut down.  Since institutions are largely unfixable, some of them shut down.   But, because the lawsuit did not demand that fewer children be taken away, there was no place to put the kids who used to be consigned to those horrible institutions. 

So they were housed in state family policing agency offices. 

There followed demands to stop stashing the children in offices. 

So they were forced into hotels – including hotels known to be centers of sex trafficking. 

These children are known as “children without placements” and, as Texas Public Radio explained, 

“… children have died, they were sex trafficked and they were impregnated while under [that] status. … if parents behaved the way [the Texas family police agency] does with [these] kids … multiple judges TPR spoke to said they would remove its kids.” 

So surely it should be obvious by now to Children’s Rights and A Better Childhood that they need to go back to the drawing board and seek a settlement to their McLawsuit built around safe, proven ways for Texas to stop taking so many of them in the first place.  

And yes, Texas takes a lot of kids.  Officially the state’s rate-of-removal is low, but that’s only because Texas may make more use than any other state of “hidden foster care” – off-the-books placements that are not reported in official figures.  If they were, odds are the number of children reported as entering foster care would nearly triple. 

The Legislature steps in 

One group gets this -- albeit not the one you might expect: The Texas Legislature.  They passed a series of bills to curb the vast nearly unchecked power of the family police to needlessly tear apart families.  If those new laws are allowed to remain on the books unchanged, they, alone, won’t solve all the problems.  But their enforcement is an essential prerequisite to solving all the problems – since that will open up spaces in actual family foster homes for the children who really need them.  

Opening those spaces alone won’t be enough.  Those foster families, and birth families whose children can safely remain at home or be reunited, are going to need far more support in order to care for children, some of whom were damaged by actual abuse, almost all of whom were damaged by the abuse inflicted on them by being forced into the hellscape of Texas foster care. 

Instead, of course, there is a media-fueled campaign against the new laws. They are being scapegoated for every horror story – even horror stories that took place before the new laws took effect.  Apparently, those wedded to the take-the-child-and-run status quo want Texans to believe that, before the new laws, there were no horror stories.  No child ever died of abuse because they all were rescued and lived happily ever after in the rainbows and unicorns land of Texas foster care.  

Unfortunately, a lot of media seem to be buying it – especially in San Antonio, which always has been the most trigger-happy city in Texas when it comes to taking away children. 

The attacks against the new laws are spearheaded by exactly whom you would expect: the Texas chapter of Court-Appointed Special Advocates (CASA).  Study after study has shown that CASA makes outcomes for children worse – and one of those studies was commissioned by Texas CASA itself.  

That study found that when Texas CASA gets involved:

“Overall, children appointed a CASA have significantly lower odds than children without a CASA of achieving permanency.” [Emphasis added.]

Compared to children not burdened with a CASA on the case, Texas foster children with CASAs were:

● Less likely to be reunified with their own parents.

● Less likely to find permanence in the form of guardianship by a relative.

● More likely to “age out” of foster care with no home at all.

Yet now, when Texas CASA – a group that should have the least credibility of any organization in Texas – leads a smear campaign against the first changes in decades that offer real hope to children many media buy their snake oil and beg for more. 

Wouldn’t it be great if there were some other big organization, also beloved by Texas media, that could step in and set the record straight; say, an organization that is on record as supporting reforms much like those passed by the Texas Legislature?  An organization that is revered by the same Texas media who smear the Legislature’s reforms – almost all passed with strong bipartisan majorities – as part of some vast right-wing conspiracy? 

Oh, wait, there is such a group: It’s called Children’s Rights.  But they’re still too busy playing whack-a-mole.

Click here for part two, in which we discuss CR's failure in Tennessee

Texas tragedy is foster-care failure in microcosm

KABB-TV in San Antonio reported this week on the tragic death of 16-year-old Mia Morales who died in a car crash after running away from a makeshift foster care placement.  It’s remarkable how many tragic failings of Texas foster care – and the failed attempt to fix it with a McLawsuit – are illustrated by this one case. 

● Mia’s mother says she gave up the girl and her other children for adoption nine years ago because she thought they would be safe.  The mother was being abused by the children’s father. 

What if, instead of simply accepting surrender of the children, authorities had removed the abuser from the home, and helped the mother with whatever she needed to raise the children on their own?  

● The adoption failed – the adoptive parents gave up on the children and sent them back to foster care. 

We don’t know how often this happens – family policing agencies never like to ask questions to which they don’t want to know the answers.  But the available data are alarming.  It’s clear that often the “forever family” is anything but.  This much we do know: The adoptions helped Texas collect bounties of anywhere from $4,000 to $10,000 paid by the federal government under the so-called Adoption and Safe Families Act.  When the adoptions failed, Texas didn’t have to return any of the money.  In addition to all its other harms, ASFA creates an incentive for quick-and-dirty slipshod placements. 

● One reason the mother might have thought surrendering her children to foster care was the only option: She’d been in foster care herself.     

Yet, even after generations of failure, we still delude ourselves into thinking foster care is fixable. 

● The story ends with the obligatory quote from a lawyer involved in the McLawsuit against the Texas system brought by the group that calls itself “Children’s Rights.”  

But the McLawsuit, like so many other nearly identical suits brought by Children’s Rights, does nothing to fix these problems and may even make things worse. Children are in makeshift placements because too many are taken needlessly from their homes.  The McLawsuit diverts funds from what does work – providing the help families need so their children aren’t taken in the first place.  And the lawsuit complaint even calls for stricter enforcement of ASFA. 

The failure of the Children’s Rights McLawsuit approach is best summed up when the local lawyer working with them tells KABB “What these children need are trained caregivers.”  No. What these children need are exactly what Mia Morales needed – their own families.

Deep in the heartless of Texas

Two cases illustrate the need for those good, bipartisan "child welfare" laws the Texas Legislature has been passing lately.

Two weeks ago I wrote about a news story concerning new laws in Texas that bolster due process for families.  In that story one lawyer pushes the idea that, “The failing in … [recently passed] laws is that the standard is so high now for a child to be removed.”  This apparently was a reference to a 2021 law tightening the definition of neglect before a child could be removed.  (None of the laws passed this year does anything to change the standard for removal.) 

The story also quoted a state legislator opposed to a new Texas law that, in most cases, replaces anonymous reporting of alleged child abuse and neglect with confidential reporting.  Said Sen. Jose Menendez: 

“None of us in this room want any child to suffer abuse or neglect. And I would hate for us to vote for a policy where the tradeoff is ... [having] a child possibly die from abuse or neglect.” 

But two recent cases illustrate that either the standard is still too low or, like so many laws intended to protect children from needless surveillance and foster care, this one isn’t being enforced.   One of the cases also makes clear that the near-ban on anonymous reporting came too late.  That case led to the ultimate tragedy.  To what should be the surprise of no one, both families are Black. 

A case in Houston 

A four-year-old is taken from her mother after they were found sleeping in their car – which was the only place they could afford to live.  This story, from KTRK-TV, gives the police version and the mother’s version.  But even if you believe the police version, this case was cause to find the family housing – not to throw the four year old into kinship foster care. 

In addition, the mother was arrested. But a condition of her release was that she not even see her child – or to put it another way: The child has been barred from seeing her mother.  What exactly did the child do wrong to deserve that? 

This seems to be a habit in Houston.  The case is remarkably similar to this one.  And this one. 

But it can get so much worse. 

A case in Harker Heights 

This is what happened in Harker Heights, a town between Austin and Waco, in  September 2022: Six children are taken away.  All of them, even the youngest, age 2, are institutionalized.  Now that child is dead.  According to KWTX-TV,  “this all happened because of a call alleging [the mother] was smoking marijuana.” KXXV-TV reports the mother passed numerous drug tests.  The television station also reports that the call setting this tragedy in motion was – anonymous. (KXXV also report there was an allegation of "violence" - but no indication there was even an allegation of violence against the children.)

And apparently the children were never in danger since, shortly after boy’s death, the Texas family police agency gave all the other children back and closed the case.

So yeah, tell us again, Texas lawyer, how “the failing in the laws is that the standard is so high now for a child to be removed.”  And tell us again, Texas lawmaker, how the "tradeoff" for banning most anonymous reporting is "[having] a child possibly die."

Is even a moment of self-reflection too much to ask? In child welfare – and journalism – apparently, yes.

Texas Gov. Greg Abbott (Photo by Gage Skidmore)

Contrary to one caseworker’s claim, Texas Gov. Greg Abbott’s war against transgender children isn’t revealing what one family policing agency has become. It reveals what all family policing agencies have been all along. 

Last week, The Imprint published a column I wrote called “Affluent America Gets a Wake-up Call on CPS Intrusion.”  It’s about how Greg Abbott’s war against transgender children is catching in the “child protective services” net people who never thought they’d be there – white, affluent families.  

The column focused on an excellent Washington Post story about one such family – and how wrenching the trauma was, even though they were so well off they could hire two lawyers and a private social worker to fight off CPS; even though they had advance warning of the inspection of their home and even though they were able to limit that inspection. 

Poor families have none of these options. 

I ended the column with the hope that 

readers finding out for the first time what a child abuse investigation is really like, and those who are writing stories about it for the first time, will remember something. While it is new to them, poor parents, especially poor parents of color, have known it all along, just as they know they will have to give their children “the talk” and fear that their children will be stopped and frisked. For more than half of all Black children, a child abuse investigation will be part of their childhoods. 

I also expressed the hope that we would see more stories about such families and more self-reflection within the system and in journalism. 

So far, it’s not looking good.  In fact, another story, even as it shows enormous sensitivity to these affluent white families, includes a sentence reinforcing the false “health terrorism” master narrative about the overwhelmingly poor, disproportionately nonwhite families who dominate worker caseloads. 

This time the story, in the Texas Tribune, focused on workers who, finding themselves intruding needlessly on families with whom they could identify, are quitting. 

The story focuses on a transgender caseworker, Morgan Davis, who said he was glad that if anyone was going to have to investigate a family persecuted by Gov. Abbott at least he might be able to cushion the blow. 

But, according to the story: “The family’s lawyer didn’t see it that way.”  Yes, once again the family had a lawyer ready and waiting.  In fact, in an interview with Vice News about the same case, Davis said: “I was very grateful that they had attorneys.” 

In the 46 years I have been following these issues this is the first time I ever heard or read those words coming from a CPS worker. 

In fact, he goes further.  On the one hand, higher-ups at the Texas family policing agency have made it much harder to close these cases than others, leaving families in limbo.  On the other hand, this caseworker acknowledges that these families’ treatment during the investigations amounts to CPS lite, in part because he works out of an office in Austin. As he told Vice: 

But what if there's a county or a supervisor that [Agrees with Abbott]? And sends their caseworker in [and says] I want you to go to the school, I want you to record the child, show up unannounced to the home, all things that are normally done during the course of action of any investigation? [Emphasis added.]

In other words: OMG! What if we have to treat these white, affluent families the way we routinely treat poor families and nonwhite families? 

And speaking of things I’ve never read or heard before, consider this from the Texas Tribune story: 

Even the person who made the child abuse report didn’t seem to agree with the directive: Davis said they were sobbing on the phone, distraught that they were reporting the family, but the person was mandated by law to report child abuse and feared the consequences of not making a report. 

“[They] said to me, ‘Just promise me you’ll be kind,’” Davis remembered. 

Now consider how the caseworker made his judgment about the family he was forced to investigate.  According to the story: 

When he visited the family, the house was clean, the pantry was well stocked and the kids were healthy, happy and well loved. 

Now, let’s break that down: 

When he visited the family, the house was clean … 

To which the only reasonable response is: SO WHAT???? 

Why are caseworkers obsessed with equating cleanliness with love? Do only neat-freaks love their children? 

In no field I know of is the phrase “cleanliness is next to godliness” taken more literally than family policing – and none where the consequences are worse. 

A dirty home means you’re neglecting your children – so they wind up in foster care. 

Conversely, after reading thousands of news stories about family policing over the past 46 years I’ve seen it over and over again: fatal neatness - caseworkers declaring they never suspected anything was wrong in the home where a child died “because it was always so neat and clean.”  

I know of no study of how often caseworkers are blinded by what might be called Eternal Sunshine of the Spotless Home syndrome, but it happens often enough that one former state “Child Advocate,” Kevin Ryan, made this recommendation to the New Jersey child welfare agency in 2005: 

Until someone demonstrates a correlation between cleanliness and child safety, [the state child welfare agency] should instruct employees that this factor is, at best, hardly relevant unless the filth is severe enough to cause a real and immediate risk to the child. This both will reduce needless removals from dirty homes, and encourage workers not to write off the potential for risk in homes that happen to be spotless. 

Another observation from the caseworker: 

…the pantry was well stocked … 

Well of course it was! It’s not as if this family had to worry about the SNAP benefits running out at the end of the month. Again, what does that have to do with love? 

Not only does the Texas Tribune story show no understanding of the irony in all this, there are dark hints throughout that with all the resignations at the Texas family policing agency there won’t be enough people to go after the real abusers – and we all know who they are, right?  After all, as the story says, caseworkers are dealing with a crisis of children pouring into the system with no placement for them.  And, the story says: 

that’s in addition to their existing, often overwhelming job duties investigating some of the most heartbreaking, challenging cases of abuse and neglect.

Such cases are serious, real – and very rare.  Mostly family police are dealing with the confusion of poverty with neglect.  The reporter here has simply bought into the whole narrative of “health terrorism” that family policing agencies have sold for decades – that the extreme horror stories are the norm and family policing agencies are a “thin blue line” protecting helpless children from their (overwhelmingly poor disproportionately nonwhite) parents who are sadists at worst and sick, sick sick! at best. 

At the very moment that this reporter is eyewitness to the abuse of power of family policing, she rushes to draw a distinction between people like us and people like them. 

The workers interviewed seem anxious to do the same; the story is filled with their proclamations of moral superiority. 

None of this is meant to diminish the trauma endured by transgender children and their families in Texas – and elsewhere, or the trauma for caseworkers.  But as soon as the crisis hit, those who already know what family policing is like responded with empathy.  Within days, NCCPR Board Member Prof, Dorothy Roberts, America’s leading scholar of racism in family policing, had a column in The Washington Post condemning Abbott and emphasizing that, bad as foster care is for other children, it’s even worse for LGBTQ children. 

I have not yet seen evidence that such empathy is a two-way street, either within family policing or within journalism. 

At the top of the Texas Tribune story, the reporter notes that she and a colleague are working on several more stories and they’d like caseworkers to please reach out to them.  There is no similar request to poor, nonwhite families.  

As for those within the system, at one point David, the caseworker profiled in the story, says: 

“It was just heartbreaking to me, to everyone, to see what we were doing, to see what we had become.”

I’m sure Davis went into this work for all the right reasons.  He wanted to help children.  Now he sees how much harm a family policing agency with vast, unchecked power and no accountability can do.  But it’s not a matter of what one family policing agency has become.  In poor communities, especially poor communities of color they know: This crisis simply reveals what all family policing agencies have been all along. 

Secrecy and arrogance breed a culture of lying in child welfare

The examples below do not mean that lying is rampant in child welfare systems.  But they illustrate a pervasive tolerance of whatever lying does exist.

There was an extraordinary moment in a courtroom in Houston in October.  A child protective services caseworker was asked about apparent inconsistencies in things he had said at a previous hearing on the same case.  He responded by asserting his Fifth Amendment right against self-incrimination.  He did it repeatedly.

Then the supervisor on the case testified. She did not take the Fifth.  But, as Keri Blakinger of the Houston Chronicle reports, she “drew incredulous looks in the courtroom when she so frequently claimed that she didn’t know, couldn’t answer or didn’t understand the question that [a lawyer] eventually asked if she had any knowledge that made her qualified to  make decisions.”

Judge Mike Schneider ultimately ruled that the children in this case should not have been taken away.  Indeed, the removal may have jeopardized one child’s heath.  Judge Schneider actually ordered the Texas child protective services agency to stay away from the family. And he ordered the agency to pay $127,000 to cover the family’s legal fees and other costs.

Judge Schneider branded the agency’s behavior “dishonest” and possibly “malicious.” He ruled the agency “abused the legal process” by deliberately filing pleadings that included “misstatements of fact” and “material omissions.” 

“It can be inferred from the context of [the caseworker’s] testimony,” the judge wrote, “that he invoked his Fifth Amendment [rights] …to avoid admitting to perjury.”  He ordered the child welfare agency to provide training to all staff “regarding the truthfulness owed to the court and the penalties for perjury.”

Yes, that’s right.  A judge found that CPS workers actually need to be trained to know they’re not supposed to lie in court.  And he’s not the only judge who’s felt the need to point that out.

Other examples

It would be bad enough were this the only such case.  In fact, it’s another example of a culture of lying that permeates the child welfare system.

● In Connecticut alone, between 2004 and 2007, two different judges blasted that state’s child welfare agency for misleading them in court.  One judge called a caseworker’s reports “disingenuous,” “misleading” and “intellectually dishonest.”  In another case the judge ruled that a caseworker deliberately distorted the facts of a case in order to persuade a court to remove a child. The judge found that the worker sought to “manipulate the facts” and “mislead the court.” Much as her counterpart in Texas would do years later, she urged the child welfare agency to explain to caseworkers the penalties for perjury.

● In 2016, a caseworker in California actually claimed what amounted to a constitutional right to lie.  The worker didn’t admit to lying – though a jury said she did – but when she was sued she argued she was entitled to immunity because she didn’t know that lying to a court was a violation of the family’s constitutional rights.  

Sure, there’s a California statute that says immunity does not apply to child welfare workers who, acting with malice, commit perjury and fabricate evidence.  And well, yes, the caseworker might have known it was immoral and unethical but, hey, her lawyer argued, that doesn’t mean she knew it was also unconstitutional.

Fortunately, the courts did not buy this. But what does it say about child welfare that a federal court actually had to explain to caseworkers that “There are no circumstances in a dependency preceding that would permit government officials to bear false witness against a parent.”

This tolerance, or worse, of lying, goes far beyond individual workers.

The Connecticut caseworkers were not sanctioned.  The worker in the California case actually was promoted. At one point she was training other caseworkers.  And that law that denies immunity to lying caseworkers actually was opposed by the California County Welfare Directors Association and the California chapter of the National Association of Social Workers.

In Texas, the child protective services agency did not penalize the caseworker who took the Fifth or the supervisor whose testimony sounded so much like Sergeant Shultz in Hogan’s Heroes.  

The agency declared: “Our actions in this case were appropriate.” They've appealed the financial sanction imposed by the judge.

And then, attorneys for the parents allege, it got worse.  They say an investigator for the County Sheriff’s office contacted them to tell them that “at least ten CPS workers up and down the foodchain” called to pressure him into bringing criminal charges against the parents. Both the CPS agency and the sheriff’s office deny it.

It’s not just the caseworkers

The culture of lying in child welfare goes beyond child protective services agencies.

A judge in Snohomish County, Washington concluded that the county’s Court-Appointed Special Advocates (CASA) program engaged in “the blatant withholding and destruction of evidence and … rampant continuing lying …”  The judge continued:

This was not just a lot of lying. It was lying with no concern that you were lying. It was lying with ‘I don’t care if I get caught.’ It was lying again and again and again after getting caught. It was lying under circumstances where it could be absolutely proven you were lying.

But what about judges themselves?

In order for the costs of a foster care placement to be eligible for partial federal reimbursement, a judge must check a box on a form certifying that the child protective services agency made “reasonable efforts” to keep the family together.  In Michigan, 40 percent of judges surveyed admitted to lying about this – they checked the “reasonable efforts” box even when they didn’t believe the agency had made “reasonable efforts.”  And that’s just the percentage who will admit it in a survey.

All of this is before we reach the common claims that may not quite be lies, but are blatant misrepresentations, such as assertions about the rate of abuse in foster care and due process. (There is way  more of the former and way less of the latter than people in the system claim.)

A hothouse for lying

Is child welfare’s culture of lying worse than that in other professions?  I don’t know. I certainly hope so – it would be depressing indeed to think that all professions functioned this way.  What I do know is that a typical child welfare system is a hothouse for lying – the conditions are perfect.

For starters, almost everything is secret.  Almost all the records are secret and in most states, so are the court hearings. (Texas is an exception; if not for that we might never have known about the case in Houston, and certainly wouldn’t have gotten such vivid accounts of what went on the courtroom.) 

The secrecy promotes a “veto of silence” that prevents this kind of lying from being exposed.  For most of the public and the media any parent whose child is taken away is presumed to be a “child abuser” – regardless of the facts of the case.  So who is going to believe a “child abuser”  over a caseworker, much less a CASA or a judge?

The very fact that CPS workers’ mission is so vital breeds an ends-justify-the-means mentality at best and a dangerous hubris at worst.  More than 25 years ago, a Florida caseworker allegedly told families “I have the power of God.”  The attitude boils down to:  We’re saving lives here, so what’s wrong with a little lying?  (Plenty, it turns out, as those cases in Connecticut, Texas and California make clear.  In all of those cases it was the children who suffered because of the lying.)

None of this means that lying is rampant in child welfare systems (though no family who has been  But there is a pervasive tolerance of whatever lying does exist.

lied about is likely to believe that it isn’t).

That can change, but only if we demand transparency from child welfare systems. That means a strong rebuttable presumption that all court hearings and most records are open.  But it also means we need to question our own preconceived notions about everyone in the system, and everyone caught up in it.

Impressive reporting on racial bias in Texas child welfare

There’s a pervasive stereotype – especially in Texas - about those of us who think there should be less coercive intervention into families. It goes like this:

If you want to take away fewer children you must be one of those right-wing extremists who doesn’t care if parents beat up their kids!  This stereotype has been reinforced for at least 20 years by the most prominent liberal in Texas child welfare -- a “Godsource” for Texas journalists -- who has crusaded endlessly to tear apart more families.  (I see no reason to name him here, but you’ll find plenty about him in the report we released about Texas child welfare in 2005.)

So mainstream media coverage consists almost entirely of the following “master narrative”: Texas spends too little on child welfare, the only mistake Texas child welfare makes is to leave children in dangerous homes, Texas should take away more children and anyone who thinks otherwise must be one of those right-wing spare-the-rod-spoil-the-child “parents rights” fanatics.

One of those themes actually is correct: Texas should spend more.  The rest is Texas-sized misrepresentation.  It misrepresents not only those of us on the Left, but also many smart, principled conservatives with whom I disagree on almost everything but who care passionately about protecting children and see that the current approach isn’t doing the job.

Greetings from the Family Values Left

Speaking only for myself, I’m a lifelong tax-and-spend liberal who proudly cast his first vote in a Presidential election for George McGovern and his last vote in a Presidential primary for Bernie Sanders.  And one look at the Board of NCCPR (go ahead, have a look) makes clear we’re not exactly a right-wing bunch.

But that stereotype also may explain some interesting findings about racial disproportionality in Texas child welfare, discussed in an excellent story that, itself, breaks the mold for Texas media.

The story, by Julie Chang of the Austin American-Statesman, reports that statewide, African American children are, proportionately, twice as likely to be torn from their families as white children.  But in the liberal bastion of metropolitan Austin, Travis County, they are eight times more likely to be taken away. 

Statewide, Latino children were less likely to be removed than white children, but in Travis County they were three times more likely to be removed.

“I was really appalled when I saw [the data],”Aurora Martinez Jones, an associate Travis County district judge who oversees child welfare cases told the Statesman. She added:

“Ultimately, racism still exists, and it’s alive and well in Austin. We like to look at ourselves as a very liberal and progressive community, and we can be in a lot of respects, but ... people still haven’t acknowledged the implicit bias and explicit bias they may experience when interacting with other people in our community.”

Indeed, that progressive tradition actually might contribute to the problem.

Because many on the Left have a blind spot when it comes to child welfare, they are not as vigilant   And because they see an intervention by Child Protective Services as benevolent, they are less sensitive to both racial and class bias, and more likely to needlessly call a child abuse hotline and trigger a child abuse investigation. Of course, all that winds up hurting the very children my fellow liberals want to help.
about protecting civil liberties as they are when confronted by the abuses of law enforcement.

But most notable is Chang’s refusal to simply accept the usual excuses from child welfare’s “caucus of denial” – those who insist that people in child welfare are so much better than the rest of us that they are magically immune from the racial bias that permeates every other aspect of American life.  As Chang notes:

Financial pressure in part caused by the rising cost of living, limited community resources such as affordable housing, and institutional racism drive the differences in Travis County, which have widened over the last decade, according to child welfare advocates.

In other words, it’s both the confusion of poverty with neglect and racial bias. The story also notes that

Two Texas studies conducted in 2008 and 2011 found that even though African-American children were considered at lower risks of maltreatment than white children, CPS workers were more likely to remove an African-American child from the home.

Other studies have shown that when controlled for income, African-American children are still more likely to be involved with CPS than their white peers.

This of course jibes with a wealth of other research that the denial caucus chooses to ignore.

But remember how I said one part of the media’s “master narrative” – the part about Texas spending too little on child welfare – is correct? That, too, is borne out by the Statesman story:

Advocates fear that the disparities will worsen with the loss of the state’s Office of Minority Health Statistics and Engagement, which had shared data with the child welfare agency but was shuttered Sept. 1 after the Republican-led Legislature cut funding.

But this also illustrates another point: Texas doesn’t just need to spend more, it needs to spend smarter, on everything from tracking racial bias in child welfare to actually doing something about it.

All of which leads Aurora Martinez Jones to conclude:

We have to admit that this child welfare system was not created for African-American children. We did not have African-American children in mind when we started looking at a state agency that would intervene in a parent’s right to be a parent. We were looking mostly at Anglo children and how we could support their families. This system needs reform.

The rest of the media in Texas should pay attention.

Think a tragedy can’t get any worse? just add child protective services

In a field filled with subjectivity and bias, it’s sometimes assumed that one determination is easy: figuring out if a death was caused by child maltreatment.

In fact, that’s often as subjective as everything else. I usually illustrate this with the following hypothetical.

Early one Sunday morning, a young child finds a way to unlatch the back door while his parents are asleep. He wanders off, falls into a body of water and drowns. Accident or neglect? If the body of water is a pool behind a McMansion, it probably will be labeled an accident. If it’s a pond behind a trailer park, it probably will be labeled neglect.

But no hypothetical can demonstrate how much cruelty such subjectivity can inflict on children. For that, only real life will do.

Consider the story of the Wartena family – mother, father, and five children – who were passing through Amarillo, Texas, on their way home to California last month.

Seven-year-old Alexis Wartena, who was autistic and fascinated by water, opened a broken latch on their hotel room door and left the room. She wandered to a nearby lake and drowned.

The Amarillo police, who apparently watch too many episodes of Law & Order, seem to have jumped immediately to the conclusion that the parents must have killed the little girl. So they allegedly browbeat the parents for 12 hours, possibly delaying the search for the child in the process.

Emotional “torture”

The family’s pro-bono attorney, Jesse Quackenbush, calls what was done to the girl’s mother emotional “torture.”

But it was mild compared to the emotional torture endured by Alexis’ siblings, aged 6, 5, 4 and 2. At the worst moment of their lives, the moment when they most needed the comfort of their parents, they were torn away from them by strangers – child protective services workers – and consigned to foster care, with no idea when or if they’d ever go back. The parents talk about the family’s ordeal here.

For children of this age it can feel like a kidnapping; you can’t explain good intentions to a two-year-old. And young children often believe anything that happens to them somehow was caused by them. So these children may well have felt the death of their sister somehow was their fault and now they were being punished. They may carry these scars forever.

For one child, the harm was not just emotional. Child Protective Services admits that one of the children was physically abused in foster care, which one could almost have expected giventhe high rates of abuse in foster care.  And the Wartena children were subjected to the special hellscape that is Texas foster care.

Once the child was abused in foster care, CPS gave all the children back. How did parents who supposedly were a terrible threat to their children instantly become no threat right after one of the children was abused in foster care?

Unless, of course, they never really needed to be taken away at all.

CPS was only protecting itself

The harm inflicted on this family by CPS had nothing to do with protecting children and everything to do with protecting CPS. The workers probably were terrified of having the next high-profile tragedy on their caseload.

What are the odds this would have happened had the tragic accident occurred in that hypothetical backyard pool, instead of a pond behind a hotel where the rooms rent for an average of $67.50 per night?

We don’t need to rely on hypotheticals here, either.

Several weeks ago, I wrote about a Michigan case in which a little boy died and the parents really did kill him. But in the case of Ricky Holland, the murderers were affluent adoptive parents.

During the time after Ricky Holland disappeared but his body had not yet been found, Michigan child protective services not only left Ricky’s siblings in the home, they actually gave the Hollands final approval to adopt another foster child in their care. “This worker has no concerns regarding the safety of the other children,” a CPS caseworker wrote in a report.

One more burden?

Even after all they’ve endured, the Wartena family may have to bear still another burden – if, that is, they live in a community where the latest fad in child welfare, predictive analytics, is taking off. After all, what would an algorithm say about a family in which one child died and the other children already been taken away and thrown into foster care?

Wherever predictive analytics rules, families like the Wartenas will be under suspicion forever.

 This column was co-authored by Johana Scot, executive director of the Parent Guidance Centerin Austin.