“Child welfare” in Pennsylvania: checking Pandora’s Box

Photo by Tara Winstead

Pennsylvania take-the-child-and-run extremists are upset about the very idea that families should get an administrative hearing before they’re blacklisted forever in the state’s central registry of alleged child abusers 

Suppose you were reading a news story about a community that had decided to end the racist practice of stop-and-frisk policing.  You read that not only does it brutalize and humiliate those stopped and frisked – overwhelmingly Black teenagers and young adults – but also, the cops almost never find anything.  It does nothing but harm those stopped and frisked, violate basic American principles of justice, and leave in its wake increased hostility toward law enforcement. 

But then you hear from a politician who voted to keep stop and frisk – or maybe a high-ranking police officer.  And he says: “Even though we didn’t find anything, they’re all still guilty!  Too much time passed, and they just got rid of the evidence before we could stop them! 

What might you think of such a comment?  If you were, say, Newt Gingrich, Tucker Carlson or Donald Trump I’m sure you’d agree 100%.  But would progressives fall for a line like that?  Or would they wonder if the speaker had a racial bias problem? 

I ask because, in the inside-out upside-down world of family policing (a more accurate term than child welfare), this can happen: 

An organization can slap one of those boilerplate “black lives matter”- type statements on its website acknowledging that “Today, we understand that the child welfare system is inherently racist.” Then, the same group’s director can turn around and take the inherently racist position that, in his city, where the target population is overwhelmingly nonwhite, everyone who a caseworker even guesses is a child abuser must be guilty!  If an arbiter says otherwise, he explains, it’s just because “the case deteriorated on its own by the passage of time.” 

And he’s not alone.  A whole coterie of take-the-child-and-run extremists have done enormous harm to the very children they want to help in his city, Philadelphia, and the state of Pennsylvania as a whole.  They went into the field to do good. Their efforts have backfired. 

The appalling comment in question can be found in a story in the Philadelphia Inquirer last week concerning a lawsuit brought by Community Legal Services of Philadelphia.  No, the subject isn’t stop-and-frisk, it’s an even worse infringement on civil liberties that does even more harm to children: placing families on Pennsylvania’s blacklist of alleged child abusers based on little more than a caseworker’s guess, with no hearing beforehand – only a cumbersome process to fight your way out afterward that’s often impossible for poor people to navigate. 

In this report CLS explains how the process works: 

All too often, indicated reports are based on faulty or incomplete investigations, or on the caseworkers’ misapplication of evidence or misunderstood statutory definitions. In many cases, racial, cultural, or economic differences create an additional bias that factors into a caseworker’s determination of whether child abuse or neglect occurred. Furthermore, there is no hearing or opportunity to present evidence to a neutral party. The “investigator” is also the “judge and jury.” A caseworker checks off a box, and an individual is placed on the child abuse registry, effectively for life unless the individual successfully appeals within a short deadline. While a 2014 amendment requires that agency solicitors review a worker's child abuse determination, this has not measurably reduced erroneous child abuse determinations. 

That listing has huge consequences.  It will get you fired from a vast range of jobs that involve working with or even having “routine interaction” with children, and make it impossible for you to get another job like it, sometimes forever.  

Many of these jobs are entry-level, low-paying jobs, the first rung on the ladder out of poverty.  So families are driven deeper into poverty.  That makes them targets when the poverty is confused with “neglect.”  That neglect allegation is even more likely than usual to lead to removal of the children – because, after all, there was that other “substantiated” allegation.  But remember, substantiation in Pennsylvania, and most other states, can mean only that a caseworker guesses it’s slightly more likely than not that what you did fits expansive definitions of child maltreatment.  

And if you happen to live in metropolitan Pittsburgh it’s even worse.  The registry listing will raise the “risk score” stamped on your child – in some cases at birth - by one of Pittsburgh’s racially biased “predictive analytics” algorithms – again, increasing the risk of child removal and coming back to haunt the child in later life – because having a high risk score as a child counts against you as an adult. 

In effect, when the caseworker checks the box on the form that says “substantiated” she can be checking Pandora’s Box.  That one bad guess by a caseworker can set off a cascade of compounding errors that needlessly destroys overwhelmingly poor disproportionately nonwhite families.  

A truly modest proposal 

CLS and the others who are suing are not asking for the moon.  All they seek is protection that anyone not familiar with family policing probably would assume already exists: an administrative hearing – not even a full-scale trial – before a neutral arbiter before a family is blacklisted.  Twelve other states already do this, and there is no sign that child abuse has run rampant in those states as a result.  

Even if the lawsuit is successful, the family still might shave to navigate the system alone, unless the Legislature also were to mandate that most basic protection: A lawyer for people who can’t afford one. 

But this minimal request to curb the vast power of caseworkers was enough to infuriate some of the take-the-child-and-run extremists who have, for decades, done enormous harm to the Pennsylvania children they want to save.  

The comment I cited above comes from Frank Cervone, who, for decades, has run something called the Support Center for Child Advocates.  A check via the Wayback Machine confirms that, over the years, the Center’s website has showcased a litany of horror story cases that bear no resemblance to the typical cases seen by workers.  They toned it down a little in the most recent version, but I have never seen them showcase an instance in which they intervened because a child never should have been taken away in the first place.  Apparently, they don’t believe such cases exist. 

Yet all the while, Cervone remained the “Godsource” for Philadelphia media – the one person who reporters rushed to for every story, and whose assertions were treated as Holy Writ.  

His influence is among the main reasons why, for many years, Philadelphia tore apart families at the highest rate among America’s big cities.  A willingness to stand up to him and treat his pronouncements with more skepticism is one reason why Philadelphia’s record is starting to improve. 

It is Cervone’s group that recently slapped that lovely statement onto its website. The statement reads in full: 

The Support Center for Child Advocates (Child Advocates) began representing children in the child welfare system in 1977 and since then, the agency has witnessed the disproportionate impact that the system has on families of color. Today, we understand that the child welfare system is inherently racist, and we must use our power and privilege to counteract this systemic racism and its impact on the communities we serve. 

But last week, Cervone used his power and privilege to do the opposite.  

The CLS lawsuit includes the fact that while, at the first level of appeal, within the state family policing agency, caseworker decisions are never – yes never – overturned, when families make it through the labyrinth and manage to be heard by a neutral arbiter – often long after they’ve been blacklisted – they usually win.  The caseworker’s guess is overturned. 

But apparently, that means nothing to Frank Cervone.  He told the Inquirer: 

“They’re not [overturned] because the person was wrongly accused. The case deteriorated on its own by the passage of time." 

Behold the Cervone Doctrine of Caseworker Infallibility!  If the worker says they did it, they did it!  Sort of makes you wonder why we bother with hearings at all, much less courts of law.  And keep in mind, as you read that pious pronouncement about racial justice from Cervone’s group, about 65% percent of the accused Cervone stigmatizes are Black and another 18% percent are Latinx. 

One more thing: If there really is a problem with the “passage of time,” nothing will fix that faster than requiring a prompt, fair hearing before anyone can be blacklisted in the first place. 

Apparently, Cervone isn’t the only adherent to the infallibility doctrine in Pennsylvania.  

Consider Penn State Prof. Sarah Font, whose notable contributions to the field include joining the right wing’s rhetorical assault against America’s most progressive child welfare legislation, the Indian Child Welfare Act, and calling for laws requiring every parent in America whose child is not otherwise seen by “mandated reporters” to produce their children for a child abuse inspection whenever they reapply for “public benefits” (so we know exactly who the target population is) -- even when no one has accused them of anything.  

I have seen no comment from Font about the CLS lawsuit.  But I don’t think she’ll like it much. Font co-authored a paper suggesting that Pennsylvania families should receive even less due process.  It includes this graphic, which suggests that there is no such thing as a mistaken allegation.  No matter how many tribunals find you innocent, according to this graphic, you are always the "perpetrator.”

And then there’s Cathleen Palm, who somehow managed to achieve Cervone’s Godsource status all over Pennsylvania.  She has been among the biggest cheerleaders for the slew of laws that vastly increased Pennsylvania’s child welfare surveillance state in the wake of the scandal surrounding former Penn State coach, foster parent and group home owner Jerry Sandusky. Palm repeatedly took both data and definitions out of context to advance her crusade.   

The laws caused a spike in the number of children torn from their homes, especially in Philadelphia, and they continue to overload systems so workers are less likely to find the relatively few children in real danger.  She helped fuel the false narrative about COVID-19 supposedly setting off a pandemic of child abuse.  And she is a champion of those Allegheny County algorithms – the ones that have been found to bake-in racial bias. 

Embracing the Big Lie 

But most of all, Palm is a true believer in the Big Lie of American child welfare – the false claim that “family preservation” and “child safety” are opposites that need to be balanced.  

Whoever wrote the subhead for the Inquirer story accepted this false framing, declaring as fact that “Any fixes to the ChildLine registry need to strike a difficult balance between helping wrongfully accused adults and protecting children from harm.”  (The reporter who wrote the actual story, to his credit, was more careful.) 

But framing that accepts the Big Lie ignores the enormous emotional trauma of foster care placement - as bad for a child taken by a Pennsylvania caseworker as it is for one taken at the Mexican border.  It ignores the high rate of abuse in foster care itself.  It ignores the dismal outcomes for many foster youth.  It ignores the mass of research showing that, in typical cases, children left in their own homes do better even than comparably-maltreated children placed in foster care. The Big Lie encourages massive needless removal of children – which overloads systems and leaves them less time to find the few children in real danger.  In short, it makes all vulnerable children less safe. 

Real defenders of children’s rights support family preservation because it is almost always the safer option for children. 

And yet, Palm tells the Inquirer that merely because of a call to require a hearing before someone is blacklisted for life based on a caseworker’s guess 

“There’s alarm from some of us that the pendulum is swinging a little too far or is a little too adult-driven and losing sight of the fact that for a lot of people who are put on the registry they have, in fact, done something harmful to a child.” 

Actually, we don’t know that.  That’s the whole point.  It’s reasonable to believe that some people on the registry did “something harmful” [emphasis added] and among those are some who did something so harmful they need to be on the registry.  But a lot?  In the absence of a hearing before a neutral arbiter, we have no idea. 

Some people in jail are criminals.  That doesn’t mean we abandon the process of an actual trial in order to find out if they are criminals or not.  Yet Palm uses scare rhetoric in response to a proposal for even less due process than that – a mere administrative hearing. 

To understand what really upsets the take-the-child-and-run extremists so much, one need only recall the words of still another defender of untrammeled power for the family police, longtime Philadelphia “child welfare” apparatchik Paul DiLorenzo.  He’s the one who declared that people like himself “have remained the arbiters of child safety … It would never be wise for us to let go of our grip.” 

I haven’t seen DiLorenzo take a stand on CLS’ lawsuit.  But it clearly upsets the take-the-child-and-run crowd to see a lawsuit that calls for a change that would even ever-so-slightly loosen their grip. 

Once again, Orwell would understand 

Any regular reader of this Blog knows that I invoke Orwell a lot.  Here’s why:  

In the world of Cervone, Font and Palm and their counterparts across the country: 

● The easier you make it for strangers to bang on the doors of poor people's homes in the middle of the night to demand entry,

● the easier you make it for those strangers to demand you awaken your children and force them to be interrogated by those strangers,

● the easier you make it for those strangers to stripsearch your children,

● the easier you make it to leave those children terrified that the strangers may come back to take them away,

● the easier you make it to create situations that give those children nightmares, and prompt some of them to hide under their beds when they hear a loud knock at the door, sometimes for years, because they fear another interrogation – or worse,

● the easier you make it to do all this in a system that already subjects more than half of all Black children to a child abuse investigation before they turn 18,

● the easier you make it to actually take those children and consign them to the chaos of foster care – and the high risk of abuse in foster care,

● the easier you make it to brand someone a child abuser for life, put them on a blacklist and make it almost impossible to support their family financially,

● the easier you make it to confuse poverty with neglect when they can’t support their families and

● the easier you make it to brand what amounts to a scarlet number risk score on children for life – 

The easier you want to make it for the family police to do all these things - the more you’re for “children’s rights.” 

If, on the other hand, you want to spare children this trauma, and also free up overloaded caseworkers to find those few cases where children really are in danger, the more you’re one of those awful “parents' rights” people who’s “too adult driven.” 

What really scares the take-the-child-and-run extremists is that, as America’s racial justice reckoning finally reaches “child welfare,” people are becoming less likely to fall for it.

Child welfare in Pennsylvania: Dialing up the crazy, part two: Enter the “Penn State Penance Institute”

A new report is a frightening assault on the minimal due process protections meant to stop child welfare agencies from needlessly traumatizing children.

             In yesterday’s post to this blog, I described how the due process protections afforded to people who are listed on Pennsylvania’s statewide blacklist of alleged child abusers or in county child welfare agency records range from minimal to none.  I also discussed how State Auditor Eugene DePasquale launched an attack on the minimal due process protections that exist that was rife with inaccuracy, stunning for its ignorance and even veered toward conspiracy theory territory.

            Well, now it looks like DePasquale has an ally – from part of the latter-day “child saver”* wing of the child welfare research community.  I'm sure they have the best of intentions. But they’ve issued a report that amounts to an assault on due process. The extremism in the document manifests itself in many ways, including a flow chart from the report itself.  This is the lower left quadrant of the chart:

  Can you spot the problem?  I’ll discuss it below, but first, let’s look at the report.

            The report was commissioned by the Center for Rural Pennsylvania, an arm of the Pennsylvania Legislature. They hired a team affiliated with the Penn State “Child Maltreatment Solutions Network.”  Though the report originally was intended to look only at commercial sexual exploitation of children, the authors kept expanding their own mandate, first to all sexual abuse cases and ultimately to broad, sweeping conclusions about the entire system – even though the case sample they examined involved only sexual abuse cases.

            Like DePasquale, the report’s authors express alarm at what they imply is an unusually high rate at which some blacklist decisions are overturned.  They’re also alarmed by the fact that, if a report turns out to be false, the state is not allowed to keep the report forever and use it against a family anyway.

The report acknowledges that blacklist decisions are overturned, by the authors’ own estimate, only 19 percent of the time.  That’s because most of those accused lack the knowledge and/or the resources or both to do anything but lodge a written appeal.  That appeal goes to the same division of the same state agency that runs the state’s child abuse hotline.  At that stage, in 2018 the number of times a child welfare agency decision was overturned was exactly zero. Among those who do have the resources and take it to a real hearing before an independent tribunal, the Board of Hearings and Appeals, about 70 percent are overturned.  (DePasquale mistakenly claimed it was 96 percent.)

            In fact, the 70 percent rate-of-reversal is roughly in keeping with at least three other states. It also makes perfect sense, given the sloppy, one-sided nature of many child abuse investigations.  The Penn State report itself devotes page after page to condemning the poor quality of these investigations. (DePasquale raised similar concerns.) 

The report even admits at one point that “the rate at which cases indicated by [county children and youth services agencies] are overturned on appeal is high, which may both affect and reflect the concerns raised in this research pertaining to the quality, scope, and documentation of investigations.” [Emphasis added.] 

            Yet the Penn State report warns darkly that if decisions by county CYS agencies “are frequently overturned on appeal, this could provide a disincentive to making a finding of indicated on a CYS case.”  This reflects a remarkably dim view of frontline child abuse investigators. It suggests they would rather let child abusers run free than actually work improve their investigations.

Taking out the trash

            Under Pennsylvania law, if the Board of Hearings and Appeals or the courts overturn a listing in the registry, or if the county CYS agency finds it unfounded in the first place, the state must expunge the record so the false allegation can’t be used against a family in the future.

            But the presumption of guilt in child welfare is so strong that many jurisdictions want to keep false reports on the theory that, if there are enough of them, then they can’t be false.  According to Marc Cherna who runs the Allegheny County system, the one that leads the nation in weaponizing false allegations and other junk information against families: “A lot of times, where there’s smoke there’s fire.”

            This is an open invitation for anyone who wants to harass a family – an ex-spouse, an angry neighbor, a school district that wants to collect lunch money, or even an upset dentist – to simply call in more and more reports. But also, in child welfare, where there’s smoke, there’s often just an overwhelmed inexperienced caseworker blowing smoke.

            But in the atmosphere of hysteria that has pervaded Pennsylvania since the scandal over former Penn State football coach, former foster parent and former group home operator Jerry Sandusky, the state now gives permission to counties to keep junk data about families forever.  According to the authors of the Penn State report, even that is not enough. They want to require it, and they want the state to keep all of its junk data as well.

            Their excuse for this recommendation is instructive, but not in the way they had in mind.  First they write that expungement 

…may result in wrongly-accused persons being repeatedly subjected to investigation for allegations that were already investigated when the investigation has been expunged and the exoneration details are no longer available.

            Aside from the fact that no one could read this report and believe that the authors give a damn about “wrongly-accused persons” (as is discussed below, it’s not even clear they think such persons exist) they contradict this argument in the very next sentence:

At the same time, expungement may also allow serial perpetrators of child sexual abuse to go undetected. That is, expungement of unfounded allegations disallows consideration of the accumulation of allegations, patterns, and reports that are often critical to exposing serial perpetrators of child sexual abuse.

            In other words, “Where there’s smoke …”  If they believe their own second sentence then there’s no way a pile of unfounded reports clears anyone – it just makes them more suspect.

            Indeed, this mindset is confirmed, accidentally, by a spokeswoman for the state Department of Human Services – which loves the prospect of being able to keep files on the innocent forever. She told the Daily Item:

“Prior abuse reports, regardless of substantiation, are a strong indicator of risk of future abuse … Counties should be aware of all prior incidents, including unfounded or invalid reports, when investigating a new report.”

           

But there is no real evidence for this. The research that supposedly shows this actually shows only that prior reports make it more likely that there will be more reports – in other words, it amounts to a self-fulfilling prophecy. Workers who assume that where there’s smoke there’s fire are more likely to check the equivalent of the box marked “fire” when the next report comes in.

            And, of course there is a simple way to solve the problem of someone who is innocent not having a record of a false allegation: Send a copy of the record, minus anything that genuinely violates privacy, to the accused, so they can keep it and show it to the caseworker the next time that disgruntled neighbor, ex-spouse, dentist or school district demanding lunch money files a false report, or the next time a well-meaning reporter is simply mistaken.

            The report’s recommendation in this area appears under the header “Stop deleting data.”  But a key principle in any use of data is “garbage in, garbage out.”  Expunging false reports is not deleting data.  It’s taking out the trash.

Another assault on due process

            You can’t convict someone of murdering a child without proof beyond a reasonable doubt.  But in most states you can tear a child from a loving home and consign her or him to the chaos of foster care, indefinitely, using the lowest standard of proof in American jurisprudence – “preponderance of the evidence.” That means you were able to convince a judge that it is slightly more likely than not that the allegations are true and foster care is necessary.  It’s the same standard used to decide which insurance company pays for a fender-bender.

            That’s part of the reason it’s so easy to do so much harm to children. First, confuse family poverty with neglect, then take away the child (in every state workers can do that on their own authority or ask law enforcement to do it for them). Then, after-the-fact, go to court for a hearing – usually a secret hearing - where the family probably has either no lawyer or someone they just met five minutes before the hearing. The state has had plenty of time to prepare its case – and it barely has to “prove” it at all.

            In theory, Pennsylvania is a little different.  In Pennsylvania, CYS agencies eventually – though not immediately - have to meet the middle standard of proof, known as “clear and convincing.” That’s still lower than “beyond a reasonable doubt” but, theoretically, higher than “preponderance of the evidence.”

            In contrast, all it takes to blacklist the accused is a caseworker’s conclusion – with no hearing or impartial fact finding beforehand – using the preponderance standard.

            So what does the Penn State report say? While never explicitly calling for lowering the standard for holding a child in foster care, it’s clear where the authors come down. They write:

This creates a scenario in which it is known that a child is at risk of harm but no action to protect the child can be taken without the consent of the parent, who may themselves be the identified perpetrator.

           But that is inaccurate.  

            First of all, in Pennsylvania a child can, in fact, be in foster care for up to 13 days or more before this higher standard ever kicks in. That happens – in theory -- at a later hearing to determine if the child needs to stay in foster care.

But more important, the whole point of a court hearing is to find out if the child actually is “at risk of harm” and whether the parent is, in fact, the perpetrator. If a caseworker’s guess based on preponderance of the evidence were enough we could just abolish the entire court system.

The Penn State report’s framing also flunks the balance of harms test. It fails to acknowledge the enormous harm of intervention itself. It ignores the evidence that in typical cases children do better in their own homes even than comparably-maltreated children placed in foster care.  It ignores the high rates of abuse in foster care itself.  One should, indeed, have clear and convincing evidence before putting a child at risk harm by needless placement in foster care.

And finally: The “clear and convincing” standard does not stop Pennsylvania from taking away children at a rate above the national average. And it doesn’t stop Philadelphia from taking away children at the highest rate among America’s largest cities.

So yes, there’s a problem with the “clear and convincing” standard in Pennsylvania law: Judges keep ignoring it.

The bias that permeates the report

            I noted above that it’s not clear the authors believe there’s really any such thing as a false report.  Indeed, the overall message conveyed in the report is: If you’re accused you’re guilty until proven innocent – and no one is really innocent.

That’s based on, among other things, the flow chart I mentioned at the top of this post.  The flow chart is misleading on one count and flat wrong on another.  Take another look: 

            It is misleading in that it suggests, as does the report narrative, that those accused of child abuse have a wondrous array of options before them and chance after chance to prove their innocence.

            In fact, that’s only true if they’re rich, can hire great lawyers, and convince court after court to hear their appeals.  In the real world, there’s the BHA – and often, not even that.  (And remember, in most neglect cases there is no right to appeal at all.)

            The error of fact appears over and over in the lower left quadrant of the chart. That’s where, time after time after time the report lists a tribunal’s options as either “ruling in favor of CYS” or “ruling in favor of perpetrator.” [Emphasis in original.]

            The problem, of course, is that if the tribunal says the allegation was false, then the accused is not a perpetrator.  To claim that ruling that the state could not meet the bare minimum required to “indicate” an abuse allegation equals “ruling in favor of perpetrator” is like saying “the jury found the murderer not guilty.”

           

Of course sometimes a jury gets it wrong and does acquit a murderer.  And a system as arbitrary, capricious, and cruel as child welfare undoubtedly errs in all directions – including wrongly exonerating some child abusers.  But both in the flow chart and often, though not always, in the narrative, this report labels the accused as perpetrators even after a finding of abuse is overturned.

            The fact that a document purporting to meet academic standards includes this mistake, over and over and over, and no one apparently noticed, speaks volumes about the mindset of the research team.  Indeed, in reading the report, I kept thinking of something said by a prosecutor who had falsely accused large numbers of parents as part of the mass molestation hysteria in the 1980s. Said the prosecutor: “I am sick to death of things like the presumption of innocence.”

Beyond the flow chart

            The whole report has a tone reminiscent of the worst excesses of that era, the time of  cases like the McMartin Preschool, allegations of mass child abuse by Satanic cults, and so on. 

            Particularly frightening is a section concerning non-offending parents in cases of alleged sexual abuse, including parents who were unaware of any alleged abuse. The report contends that any such parent (usually the mother) who does not immediately believe the allegations, turn against the alleged offender (usually the father) and do whatever is demanded by child protective services is herself a child abuser. 

According to the report, agreeing to keep the alleged abuser away while the case is being investigated is not enough.  In classic 1984 style, you must believe the charges, and the belief must be immediate, absolute and unwavering.  Because, apparently, those same caseworkers who do those slipshod investigations can’t ever be wrong when they accuse someone of sexual abuse.

            I know of no studies documenting how many families are destroyed when a parent either accepted these demands or rejected them – and it later turned out the allegation was false.  But having been around during the McMartin-era hysteria I can say that, anecdotally, such cases arose over and over.  Children were not only taken from both parents, but loving relatives were denied custody if they did not convince authorities that they believed the charges.

            The justification for this, according to the report: If a parent is not an instant true believer ‘it is possible” that parent may “[pressure] the child to recant or deny the abuse allegations.”

           

The report is filled with speculation about what “could” or “may” happen – with no evidence or studies cited. (Recall for example the claim that if the BHA does its job and reverses the results of slipshod investigations it “could provide a disincentive” to indicating a case. [Emphasis added.]) That’s not scholarship, that’s fearmongering.

            But, to put it as they might, it could be that this is only to be expected when the organization doing the research was born out of a quest to burnish an institution’s image.

            The Penn State Child Maltreatment Solutions Network should really be called the Penn State Penance Institute.

            The Network was a public relations tactic; part of Penn State’s effort to rehabilitate its image after the Sandusky scandal.  But for the p.r. strategy to work, Penn State has to show that it’s tougher than anyone on child abuse. That leaves little room for nuance or for recognizing the need to balance the harm that may have been committed by the alleged perpetrator against the harm done to children by needless intervention.

            There is plenty in the Penn State report to suggest that the authors have a genuine passion for easing the plight of abused children.  But there is nothing in it to suggest the ability to keep biases in check that is needed for reliable scholarship.

*-In the 19^th Century, advocates for tearing apart the families of impoverished immigrants proudly called themselves “child savers.”  They left a legacy of bigotry that permeates today’s system.

Child welfare in Pennsylvania: They’re getting ready to dial up the crazy again, part 1

            Every few years since the scandal involving Jerry Sandusky, the convicted child rapist, former Penn State football coach, former foster parent and former group home operator, Pennsylvania legislators churn out a new set of bad laws so they can then churn out press releases about how they’ve “cracked down on child abuse.”

            At least one statewide official, State Auditor Eugene DePasquale, has been quick to exploit the tragedy surrounding this former foster parent and group home operator to promote policies that are only likely to lead to more children needlessly placed in foster homes and group homes.  He also comes frighteningly close to trafficking in conspiracy theories.

            Now it looks likely to happen again.  This time the target is the bare minimum amount of due process that exists for families in which someone is wrongly labeled a child abuser, sometimes based on little more than a caseworker’s guess.

            A new report, from researchers affiliated with a group set up by Penn State to do penance for its role in the Sandusky scandal, is attacking the same minimal due process protections that DePasquale went after last year.  I don't doubt that the researchers have the best of intentions. But their bias is, literally, visible in the report itself.

The background

            As in most states, in Pennsylvania all it may take to be labeled a child abuser is for a caseworker to check a box on a form based on her or his belief that it is slightly more likely than not that the accused abused or neglected a child. 

In cases of abuse and what authorities deem severe neglect, that puts you in a statewide central register and can bar you from all sorts of jobs that involve coming anywhere near children. (Pennsylvania is unusual in that the statewide register doesn’t apply to all neglect cases.)  Being on the blacklist bars you from jobs ranging from teacher, to crossing guard, to school lunch aide, to clerk in a children’s bookstore. It also bars those blacklisted from working in home health care.  And, though not required by law, some employers even bar the blacklisted form working with the elderly.

Many of these are low-wage jobs – first-step-out-of-poverty-jobs. So, as with everything else in child welfare, being wrongly blacklisted does the most harm to poor families. The stress of the listing and potential job loss itself increases the harm to children. The harm worsens if the parent on the blacklist can’t get a job, making it more likely the family will be plunged into poverty that is confused with neglect.

            And, of course, being listed in the registry means the next time the same person is accused, it is that much more likely the children’s suffering will increase exponentially because the worker will be more likely to place those children, needlessly, in foster care.  After all, they were accused before so they must be guilty, right?

            “All too often, indicated reports are based on faulty or incomplete investigations, or on actions or omissions by parents or caretakers that simply do not meet the statutory definitions of child abuse,” writes Janet Ginzburg, a lawyer for Community Legal Services of Philadelphia.  She cites this example:

A woman and her ex-husband shared custody of their 18-month-old daughter. After spending the weekend at her dad's house, the girl was returned to her mother's home with a case of diaper rash.

The dad notified the mom of the rash and gave her a tube of ointment that he had been applying. The mom watched the rash for several days, applying the ointment as directed by the medication's instructions. When the rash did not go away, she took her daughter to the doctor, who found that the rash had become infected and reported the mother to the local child-welfare agency for child neglect.

The mom had done what almost every parent would have under the circumstances - she had treated the rash, watched it closely, and ultimately made the decision that it required medical attention. However, she was placed on the civil statewide Childline Abuse Registry and lost her job as a home health aide. Until she was able to get a hearing and clear her name - a process that can take as long as a year - she was unable to get another job in the profession she had been trained in.

            Note that the mother did not get a hearing before she was blacklisted; she had to fight her way out afterwards.  As Ginzburg explains:

There is no hearing, no opportunity to present evidence. A caseworker checks off a box, and an individual is placed on the registry effectively for life - unless this person successfully appeals within a very short deadline.

            An appeal is the only way out.  That way already is foreclosed in many cases.  And in the latest example of ratcheting up the crazy, it looks like DePasquale and others are gearing up for an effort to make that one way even harder.

Pennsylvania’s weird system 

In Pennsylvania, the child abuse hotline and the central register are run by the state, but almost everything else is the responsibility of individual counties.  That’s unusual, but not unique. New York, for example, operates the same way.

            But here’s what is unique about Pennsylvania: Unlike every other state, Pennsylvania classifies abuse and what they deem the most serious cases of neglect as “child protective services” (CPS).  But other neglect cases are classified as “general protective services” (GPS).  In both types of case, a report can lead to an intrusive, coercive investigation and in both types of case that investigation can lead to consigning the children to the chaos of foster care. 

            The statewide central register applies only to CPS cases.  There is no statewide register for GPS cases – but counties still keep these records. They are not checked by employers, but they are used by county child welfare agencies in assessing future reports alleging abuse or neglect.  (This is especially dangerous in Allegheny County, where they’ve created an Orwellian automated predictive analytics algorithm that relies heavily on these data.)

            This makes it especially important that the accused have a chance to correct the record, since the record can be no more than a caseworker’s guess.

           

But in GPS cases, because there is no statewide central register, there is no appeals mechanism at all.  The caseworker’s word is – almost literally – law.  The family has no recourse against this stigmatizing and stereotyping – and in Pittsburgh, no recourse against such a false report raising an arbitrary risk score that can haunt not only the parents, but their children for life.

            Needless to say that’s not what has people like DePasquale upset.  Nope. They’re upset with the minimal due process protections that exist in CPS cases.

            In these cases, one can seek administrative review from the same state agency that runs the statewide child abuse hotline. But of the 982 such cases they reviewed for which they reached a decision in 2018 they overturned exactly zero.

            Clearly one’s only hope is to take the case to a neutral arbiter, still a state agency but one outside the human services bureaucracy. In Pennsylvania it’s the Bureau of Hearings and Appeals.  Only 955 cases reached the BHA in 2018. They ruled on 545 cases that year.

            If that name – Bureau of Hearings and Appeals -- is vaguely familiar, it’s because that agency was the subject of a bizarre rant last year by Auditor General DePasquale.  As I noted on this blog last year:

DePasquale … claims that in hearing appeals, BHA upholds [county children and youth services agency] caseworker findings only four percent of the time.  As a result, he claims, “the system is potentially sending hundreds of children back into the homes where CYS caseworkers found they were being abused.”  Then he ratchets up the fear rhetoric with this:  “No child should ever have to go back into an abusive situation because bureaucrats have their heads buried in the sand.”

There are two problems with this: The four percent figure is contradicted by readily available data, and BHA decisions have no bearing on whether children are removed from or returned to their homes.

            BHA decisions apply only to whether someone stays on the state’s child abuse blacklist, nothing more.  Whether children are removed from the home and where they wind up is decided exclusively by county child protective services agencies and courts.  DePasquale held a news conference and went on his rant apparently unaware of this basic fact.

            But DePasquale went further.  Veering toward conspiracy theory territory, he even suggested that there is something nefarious in the agency’s name: Bureau of Hearings and Appeals.  The more likely explanation: It’s called the Bureau of Hearings and Appeals because it holds hearings and listens to appeals.

            DePasquale made all these bizarre claims during a news conference announcing an “investigation” into the BHA -- as opposed to doing it the old-fashioned way, in which one conducts the investigation first and then draws the conclusions.

            As for that claim that BHA upholds caseworker claims only four percent of the time, nobody outside DePasquale’s office knows where they got it.  What we do know is, it’s wrong.

            The state Department of Human Services claims that BHA overrules county child welfare agency findings 46 percent of the time.  But I don’t know where they came up with that number either.  In fact, in the relatively few cases that make it to the BHA, it appears that BHA reverses caseworker decisions about 70 percent of the time.  (When you count all cases that are appealed, both to BHA and administratively – where nothing gets overturned – the percentage drops to under 25 percent.)

            The statistic concerning the BHA can lead to two possible conclusions: 

            1. The BHA is made up of a bunch of biased and / or ignorant administrative judges who love coddling child abusers and hurting innocent children!

            Or:

            2. As soon as the accused, at long last, reaches an independent tribunal, it turns out the case was so flimsy and / or the investigation so slipshod that it isn’t even slightly more likely than not that abuse occurred. 

            Here are some reasons why Option 2 is more likely.

            ● Pennsylvania is not unique. In Kentucky between 56 and 66 percent of cases are overturned in a typical year. In New York and Illinois class-action lawsuits revealed that when people finally make it through the slow, cumbersome appeals process they win 75 percent of the time. (NCCPR’s vice president brought the New York suit.) 

            ● In Pennsylvania, the most serious cases never get appealed at all.  If the case results in a criminal conviction it usually can’t be appealed.  Of the rest, only parents with extraordinary determination can be heard before the BHA. That’s because there’s no right to counsel if you can’t afford a private lawyer.  You have to file your own appeal within a tight timeframe, go to Harrisburg and then you’re all alone against the might of the state.  In fact, as Ginzburg notes, you can’t even see the case file with the evidence against you.

            As Pittsburgh attorney Amanda Green Hawkins put it: “It’s like David taking on Goliath.”

● In North Carolina and Missouri state Supreme Courts found that putting someone in a registry first and then holding a hearing so stacks the deck that it’s unconstitutional. Several judges in Pennsylvania have   expressed similar qualms, quoting the Missouri decision with approval.

            ● As we noted last year, DePasquale has himself expressed alarm at the inexperience, overload, and high turnover among frontline caseworkers. Since these are precisely the conditions most likely to lead to errors in all directions, it’s no wonder the independent BHA finds error so often.

            But somehow I have a feeling that, when DePasquale gets around to issuing the report on the investigation for which he’s already drawn his conclusions, something reportedly expected in the summer, he’ll go with Option 1.

            And he already seems to be getting some support in a report that is biased on its face – specifically on page 13, where you’ll find this flow chart that purports to describe the appeals process. Take a close look and see if you can spot the bias. (Hint: It’s in the lower left quadrant).

            This new report doesn’t just discuss the issue of appeals. It’s a multi-front assault on due process. There's more about that in part two.