Child welfare, civil liberties and the failure of the Left: The double standards apply to blacklists, too

Second of two parts

In a previous post to this blog, I wrote about a New York Times story that described how police swarmed a middle school and conducted highly-intrusive searches of hundreds of students looking for drugs. They found none. They also had no warrant or other authority to conduct the search.

I noted that this prompted outrage on the Left, a successful lawsuit, and even criminal charges. Yet similar behavior is routine, and often countenanced by self-proclaimed liberals, as long as it’s done by child protective services workers in the name of fighting child abuse.

The Times provided still another chance to examine double standards last month. This time it came in the form of a deeply-moving op-ed column by Tamar Manasseh, founder and president of Mothers Against Senseless Killings.

She writes about her son.  Though he has never been in trouble with the law, Manasseh writes …

He and I constantly fear that one day the Chicago Police Department is going to put him in its gang database, which contains names of 130,000 people suspected of being gang members. If they put your name in it, they aren’t required to notify you. And then if you get stopped by a police officer, there’s a good chance you’re going to end up in jail because it’s so easy for the police to come up with a reason to arrest you. Being in the database can even make it hard to get jobs or professional licenses because employers might find out when they run background checks.

Chicago’s gang database … sweeps in young people who are “likely offenders.” In reality, anyone can get on the list, and for reasons like dressing a certain way, having tattoos or just sitting on their porch at the wrong moment. It’s depressing but unsurprising that more than 90 percent of people in the database are black or Latino, a majority of whom have never been arrested for a violent offense or for a drug or weapons charge.

Once again, there was a lot of sympathy in the comments section, and, I’m sure plenty of concern among my fellow liberals.

The other database of rumor and innuendo

But once again, many liberals are silent – or worse – when it comes to another kind of massive database of rumor and innuendo that also harms children and families: “central registries” of alleged child abusers.

As with that database maintained by the Chicago police, it’s a whole lot easier to be put into one of these registries than to fight your way out.  No actual conviction is required. In most states there is no hearing of any kind beforehand.  The family gets no opportunity to defend itself at all.  Typically a caseworker need simply decide in her or his own mind that it is slightly more likely than not that the accused is a child abuser, and the accused is in the database for years, maybe decades, maybe forever. (In some states they are listed even when the caseworker thinks there is more evidence of innocence.)

And let’s be clear about what is meant by “child abuser.” Given the astounding breadth of laws defining abuse and, especially, neglect, it’s easy to wind up in one of these databases just for being poor.

In some states, there is a long, cumbersome bureaucratic appeals process, usually involving appealing to the same agency that put you in the registry in the first place. In other states, there’s no way out at all.

So it’s no wonder that evidence from class-action lawsuits indicates these registries are rife with error. In New York and Illinois such 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 North Carolina and Missouri state supreme courts ruled that the very idea of blacklisting someone first and forcing them to appeal afterwards was unconstitutional. Those courts ruled there must be a hearing before a listing in a central register.

And, as with the Chicago police registry, the victims of this massive infringement on civil liberties often are children.

How child abuse registries victimize children

For starters being listed on a central registry often means you can’t get a job in any field dealing with children. So when an impoverished parent is wrongly listed on the registry it further limits his or her job prospects, increasing the chances that the family will have to endure all the harm of poverty.

But the harm can be even more direct.  The alleged perpetrator isn’t always an adult. The lead
plaintiff in the Illinois lawsuit was listed when she was about 12-years-old – for sexual abuse – because she helped pull up the pants of much younger children who were “playing doctor” in the family’s home day care.

Yet who was front and center a few years ago in demanding that all these sloppy, slipshod databases be combined into a massive national database of rumor and innuendo? None other than that great champion of liberalism, Sen. Chuck Schumer, D-N.Y.  Judging by his quote in this AP story, (which also has an excellent overview of all the problems with central registries), Schumer did not even seem to realize that child abuse registries are nothing like registries for sex offenders which require a criminal conviction before anyone is listed.

Once again, however, hypocrisy is not a one-way street.  I haven’t seen family values conservatives rushing to demand curbs on the Chicago police gang database either. 

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

First of two parts

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

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

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

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

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

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

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

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

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

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

Just say the magic words

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

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

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

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

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

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

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

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

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

Should “speculation and hearsay” really be enough?

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

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

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

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

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

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

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

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

The new normal

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

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

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

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

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

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

Read Part Two here

Protect homeschooled children from child savers

Updated, January, 2018

More than a year ago, I wrote a column called Donald Trump and the Child Savers: Not a Band, But They Sing the Same Song.  In that column I wrote:

Some of the same people who probably are horrified by Donald Trump seem to have no problem using his tactics in the fight against child abuse.

More recently, I compared the standard rhetoric used, often by self-proclaimed liberals, in the war against child abuse to Kellyanne Conway’s attempts to justify Trump’s Muslim ban.

And now, after tragedies involving homeschooled children in Iowa, there are calls by some, including those who call themselves liberals, for requiring that every parent who homeschools a child bring that child before a mandated reporter of child abuse for periodic inspection. Try substituting “terrorism” for “child abuse” and “Muslim” for “Homeschooler” and the problems here should be obvious.

As with every other well-intentioned proposal to intrude on families, the problem with this one is the harm it would do to children in 32 states. (In 18 states everyone is a mandated reporter, including every parent, so, presumably, the proposal would have no effect at all.)

But in those 32 states, consider the real-world impact of requiring parents to submit their children to inspection by a mandated reporter, in this case probably a public school teacher:

§  The teacher knows that this child is being brought before him or her specifically to be checked to see if the child is being abused or neglected – that creates an inherent bias toward finding such maltreatment.

§  To the extent that the mandated reporter has been trained at all, it often involves broad, vague lists of “symptoms” or “warning signs.” One website alone lists 77 different “signs” that could be child abuse. They also could have many other causes. At least one of these “signs” probably could be found in almost any child at some point in that child’s life.

§  The mandated reporter knows that if s/he fails to report and then it turns out the child really was abused s/he could face dismissal and perhaps even criminal penalties. There is no penalty for a false report made in good faith.

§  All those additional false and trivial reports filed by mandated reporters will only further overload child protective services, making it more likely that CPS workers will overlook children in real danger. 

§  Children will know the purpose of these visits, and they will sense the tension they cause in their families. That makes them, inherently, an act of emotional abuse against the children. As three of the leading child welfare scholars of the 20th century, Anna Freud, Joseph Goldstein and Albert J. Solnit wrote, in calling for far higher standards before ever intervening in families:

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

Increasing government-mandated surveillance would do significant collateral damage to thousands of innocent  Muslims –  sorry, I meant children – because a few Muslims – er, homeschoolers – are terrorists – oh wait, I mean child abusers.

Why Single Out Homeschoolers?

The singling out of homeschoolers is odd for other reasons as well.

The children most at risk of abuse or neglect are the youngest. So the same logic behind this proposal requires that every child from birth to at least kindergarten age also be presented for periodic inspection.

Something like this, in fact something even worse, has been suggested by one of the most extreme of America’s latter day “child savers” – to use the term their 19th century counterparts proudly gave themselves.

The proposal in question comes from Elizabeth Bartholet, another self-proclaimed liberal, greatly admired by Daniel Heimpel, who runs the Chronicle of Social Change (the Fox News of child welfare) and partners with her in exploiting horror stories to attack safe, proven innovations to keep families together. 

Showing no concern for the trauma it would inflict on children, Bartholet has suggested in her book, Nobody’s Children (p. 171), that every parent of a young child be required to admit to their home at periodic intervals a government-authorized “home visitor.” She specifies that the visitors would be mandatory reporters and the purpose of those visits includes “surveillance.” Indeed, that seems to be their primary purpose.

Bartholet claims that a spy in every living room is no more intrusive than child labor laws. It “would simply provide society with a realistic means of enforcing” laws against abusing and neglecting children. So would a surveillance camera mounted in every room of every home with no way to turn it off. Perhaps Bartholet didn’t suggest this because George Orwell thought of it first.

Those who drew sweeping conclusions from the Iowa cases drew those conclusions selectively. In those cases the children also were adopted from foster care. In one case, relatives desperate to take in the child were turned down. Yet I've read no sweeping conclusions about either adoption - nor should there be.  The reasons to curb the misuse and overuse of foster care are grounded in the data showing the harm of needless removal of children and the high rate of abuse in foster care. When horror story cases become the basis for public policy we get horrible policies. In child welfare they only wind up hurting the children we want to help. 

Why are homeschoolers a special target of 21st century child savers?  Because we liberals tend to stereotype them as a bunch of right-wing fundamentalists – and we all know what they are like, right?

Those kinds of stereotypes have no place in the war against terror – or the war against child abuse.

Attn: Liberals. If you sound like Kellyanne Conway, you’re getting child welfare wrong

Photo by Gage Slidmore

Kellyanne Conway justifies the Muslim ban in much the
same way many on the Left justify child welfare's  
infrigements on civil liberties.

Child welfare systems have vast power and little accountability. 

Caseworkers usually can take away children entirely on their own authority; parents often have to go to court after-the-fact to try to get them back. The poor often are not guaranteed a lawyer, and rarely get a good one. The standard of proof is far lower than in a criminal case, and in most states the hearings are secret. NCCPR documents those abuses, and more, in our Due Process Agenda.

Though the system was largely created and is now largely justified by people who consider themselves liberals, when they seek to justify running roughshod over due process they sound remarkably like Donald Trump and his top aides.

Not that many are detained

Liberals justifying a take-the-child-and-run approach to child welfare often will say something like: “Only a small portion of the children investigated as possible victims of child abuse actually are removed from their homes.”

Here’s what Kellyanne Conway said about the Muslim ban – and make no mistake, that’s what it is – on Fox News Sunday today:

And so, you’re talking about 325,000 people from overseas came into this country just yesterday through our airports.  So, 325,000, you’re talking about 300 and some who have been detained or are prevented from gaining access to an aircraft in their home country.  They must stay for now.  That's 1 percent. 

And I think in terms of the upside being greater protection of our borders, of our people, it's a small price to pay. 

In fact, of course, the consequences often were far more serious. I’m sure that's one reason my fellow liberals found her comments as infuriating as I did. But consider what happens in child abuse investigations:

The definitions of neglect are so broad that neglect often is confused with poverty. And all it takes to “substantiate” an allegation is a caseworker checking a box on a form stating it is slightly more likely than not that the abuse or neglect occurred. And yet the percentage of children in “substantiated” cases who are “detained” in foster care is more like 35 percent. And the detention can last months, years, or an entire childhood.

It’s only temporary

Many times I’ve heard my fellow liberals in child welfare say “Foster care is only temporary. If we make a mistake, we can always give the child back.” They say they’re just erring on the side of safety. 

They argue that the harm of foster care is a small price to pay for making sure children don’t die of child abuse. They argue that if they are not allowed to run child welfare exactly as they see fit – civil liberties be damned – children will die.

Or, as Kellyanne Conway put it:

…this is what we do to keep a nation safe.  I mean, there are – [the] whole idea that they’re being separated and ripped from their families, it’s temporary … as opposed to the over 3,000 children who will be forevermore separated from the parents who perished on 9/11.

We know stuff that you don't

Over and over, when people in child welfare agencies are confronted with a case of wrongful removal they say "Oh, there's so much more to it, but we can't tell you - it's confidential." And their liberal supporters say: Trust them, they know more than we do and they are just acting in the best interests of the children.

Or, as Kellyanne Conway said:

[Tump] is privy to information that the rest of us aren’t, particularly the media.  The political media aren't national security and intelligence experts receiving briefings every single day like our president is.  

The Muslim ban and the take-the-child-and-run approach to child welfare have something else in common: They backfire. In the case of child welfare, the infringements on civil liberties overload child welfare systems so they have less time to find children in real danger – and more children die.

I’ve written before about just how much people on the Left start to sound like Donald Trump when the topic is child abuse.  And, as noted above, NCCPR has documented in detail the lack of due process.

So while we on the Left are fighting the horrors the Trump administration is inflicting on men, women - and children - abroad by denying them entry into the United States, let’s also take a moment to do something for children here at home: Stop casting aside everything we claim to believe about civil liberties as soon as someone whispers the words “child abuse” in our ears.

UPDATED: How to get a liberal to renounce everything he claims to believe in: Whisper the words “child abuse” in his ear

UPDATE, MAY 10: It happened again.  This time the "suspicious" passenger was writing something in what another passenger apparently took to be a secret code.  Actually, he was an Ivy League professor writing equations.

The Professor told The Washington Post's Catherine Rampell that, "It is hard not to recognize in this incident, the ethos of [Donald] Trump’s voting base."

Except, of course, when the issue is child abuse - then it becomes the ethos of too many on the Left as well.

Why is the kind of behavior that got the left rightly upset with Southwest
 Airlines, considered just fine when the fear is about child abuse?

By now, most people have heard about the Muslim student who was kicked off a Southwest Airlines flight after another passenger overheard him speaking Arabic and reported him to the flight crew. Of course. Young male + Arabic = terrorist, right?

My fellow liberals were outraged – and rightly so.  The story made The New York Times, and was the subject of this segment on The Daily Show:

All that is exactly as it should be.

But compare that response to what happens when the same sort of “if you see something, say something” extremism is applied to child abuse:

As I noted in a previous post to this Blog, a post at Medium by Michele Booth Cole, who runs a “Child Advocacy Center” in Washington, urged us to turn in anyone we think might be sexually abusing a child if “you just get the feeling that something’s not right.”  In other words, the author of this post, a so-called child abuse professional, is urging all of us to behave exactly as the passenger on that plane did – report someone based on essentially nothing.

Yet the comments on this post were almost entirely favorable. The column got one endorsement after another – such as this one: “even a 1% risk of a child being at risk is worth saying something, and you can do so anonymously.”

Yes, isn’t it great?  Unlike that airline passenger, who at least had to reveal her own identity to the flight crew, you can accuse someone of child abuse based on absolutely nothing with no accountability at all!

This advice is given even though the consequences of a false report – for the child – are a lot worse than being thrown off an airplane.

As I noted in that previous post, Cole writes that

You may never be sure and you don’t have to be sure. If you report your suspicions, the professionals in law enforcement and child protection will follow up and find out what’s happening. You could literally be saving that child’s life.

Or you could be bringing down a world of misery upon that child.

First of all, referring to the child protective services workers who will respond to the call as “professionals” often is a stretch.  In Washington, D.C., where Cole is located, they’re generally well-qualified.  More typically, however, you’re talking about someone with a bachelor’s degree in anything and a quickie training course.  Law enforcement often isn’t any better.

These total strangers will interrogate the child about the most intimate aspects of her or his life.  That’s what happened in this case, which went all the way to the U.S. Supreme Court (with my organization’s Vice President acting as pro-bono counsel for the family).

Often that interrogation will be followed by a medical examination that, if anyone else did it, would be sexual abuse.

All this harm occurs before we even reach the issue of the child protective services worker possibly panicking – depending on whether a high-profile tragedy is in the news at the moment – and consigning a child who was not abused to the chaos of foster care.

Sometimes all this has to be done anyway.  The problem of child sexual abuse, like all child abuse, is serious and real. But starting this process in motion should be based on more than “you just get the feeling that something’s not right…”

Other advice given by Cole is even worse – at one point she actually encourages the dangerous practice of distracted driving.  Seriously.  She writes:

Let’s say a school employee needed to give a child a ride home, and only the two of them would be in the car. The adult and/or the child could be on a cell phone the whole time, giving a running description of the drive to the child’s parent or caregiver.

I've put a great big National Safety Council infographic at the end of this post in the hope that Cole will understand just how dangerous and irresponsible that suggestion really is, and everyone else will see how extremism and paranoia in the war against child abuse can trump research and sound judgment.

  More generally, her ideas would lead to a generation of paranoid adults raising a generation of terrified children. In fact, it’s worth comparing Cole’s column to the comments made by the right-wing Republicans in the Daily Show video.

Odd how easily we on the left understand all this when the issue is terrorism, and how easily many of us forget when the issue is child abuse.

Read more about how the normal due process and civil liberties protections liberals fight for in other fields don’t exist in cases of alleged child abuse.

Provided by The National Safety Council​

Some children win protection from stripsearches – now if we could just take the next logical step…

By a vote of 8 to 1, the U.S. Supreme Court has ruled that an unverified tip is not sufficient justification for school officials to stripsearch a student looking for drugs. The justices zeroed in on the fact that a stripsearch is a particularly traumatic experience for a child, so you really need to have something solid to go on before you inflict it on that child.

I'm sure my fellow liberals will be pleased, just as I am. But I'll bet some of them will be the same liberals who backed SB 1440, the Texas bill that would have run roughshod over children's Fourth Amendment rights in cases where the allegation was child abuse.

Though it didn't get much attention in the debate over SB 1440, all over the country, stripsearches just like the one that prompted the Supreme Court decision are a common part of child abuse investigations (CPS agencies prefer euphemisms like "visual inspection.") If the allegation is sexual abuse, the examination is likely to be a whole lot worse. And sadly, despite Gov. Rick Perry's veto of SB 1440, for families too poor to fight back, in Texas and everywhere else, their children can be stripsearched based on little more than a CPS worker's whim. Indeed, the issue arose in a Texas case just last month.

Defenders of unlimited CPS power will say child abuse investigations are different. They'll argue that in those cases, the people doing the searching are looking for bruises, not drugs, so they're doing it for the child's own good. (Of course, that's also what they say whenever they haul a child off to foster care.) But when school officials are stripsearching a student looking for drugs they're presumably doing it for the good of an entire school full of children, yet the Supreme Court still said no. And, of course, if the child has not been bruised – as is likely when there is no more than, say, an anonymous phone call alleging abuse -- then the only people who have hurt the child are the people who stripsearched her or him.

But the Supreme Court decision also showed, once again, that my fellow liberals don't have a monopoly on inconsistency. The only dissenter in the school stripsearching case was Justice Clarence Thomas.

A “child size” Bill of Rights

During the four days of non-stop television coverage after 9/11, there are many moments I will never forget. But the moment I remember most – and the moment when I was proudest to be an American - has no vivid images. It has not been replayed over and over on television.

It happened about two days in: Police in Boston had surrounded a hotel and were waiting to move in on rooms they thought might have been used by the terrorists. They waited and they waited. For awhile, no one could figure out why they weren't moving in. Then a reporter found out: They were waiting for a search warrant.

That was the moment I was proudest to be an American because that was the moment when we showed that, just days after the worst attack on American civilians in our history, we were determined to live our values, to use President Obama's phrase.

Of course that determination waned a lot in the years since. But at least my fellow liberals could be counted on to fight each new infringement on civil liberties. Of course, that's because those whose liberties were being infringed upon were accused merely of plotting to blow up buildings and airplanes and kill thousands of people. The big tactical blunder of Bush and Cheney was failing to whisper in liberals' ears the two magic words that get so many of them to abandon everything they claim to believe in. They failed to accuse all the people rounded up in the wake of 9/11 of – child abuse.

The most recent example of this liberal myopia: The desperate attempt by, mostly, liberals in Texas to gut two court rulings that modestly bolstered children's protection against needlessly being interrogated, stripsearched, and taken from everyone they know and love. They were defeated in their effort to undermine these rulings when a coalition of conservatives and other liberals persuaded Gov. Rick Perry to veto SB 1440, a bill that would have allowed Texas CPS to pretty much enter any house any time it wanted for any reason.

After the bill was vetoed, the Austin American Statesman turned a large chunk of its story into a de facto op ed column by one if the state's leading "liberal" groups, the Center for Public Policy Priorities, to fulminate against the veto. According to the story:

One of the opposition's concerns is that under the bill, they said, the parent would not have gotten a hearing before CPS interviews their child. But [CPPP's Jane] Burstain said that family courts aren't currently required to give parents such hearings for the same reason that criminal courts don't give suspected drug dealers a hearing before their house is searched.

"You don't want to be tipping off abusers," Burstain said. "If you tell the abuser, 'Hey, we're coming to your house,' the abuser has the opportunity to coach the child, to coerce the child into lying." Elsewhere, CPPP has suggested that allowing a hearing first, in any situation, would allow parents to destroy evidence.

Where to begin?

First of all, just as Burstain admits, current Texas law already allows CPS to get court permission to enter homes without giving families a chance to object. But precisely because that is such a drastic infringement on people's rights, and can inflict so much trauma on children, there is supposed to be a reasonably high standard of evidence offered to the judge before she or he gives that permission. As a practical matter, in child abuse cases, the standard is pathetically low – but SB 1440 would have lowered it still further.

Even had the bill passed, apparently it wouldn't have been enough for CPPP. Comments by Burstain and the group's director, Scott McCown, suggest they want there to be no circumstance under which families could get a hearing first, because then CPS would lose that element of surprise – which they say is just like criminal cases. In fact, in some criminal cases there is a requirement for such hearings. And the difference between child abuse cases and drug cases is explained in a detailed letter, in effect almost a legal brief, from the Texas Home School Coalition urging the veto. THSC notes that this analogy

unwisely assumes that the child is "evidence". The child will not be destroyed, and if a judge, after a contested hearing, decides that the child should be interviewed, expert techniques can be employed to elicit evidence. Also, medical examinations can determine whether the child has been subjected to long term abuse even after time is taken for a fair and contested hearing. Second, parents have no access to original medical records held by medical practitioners and cannot destroy them. Furthermore, because medical professionals have a duty to report abuse, [CPS] already has access to the actual medical professionals. A process which disregards the rights of parents and the emotional impact upon children is not needed in order to get medical information.

Finally, if the [issue is] … tangible evidence in the home-- other than the child— … a criminal investigation should ensue which includes all of the protections to the accused which criminal law provides and this bill does not. In that vein, there are already procedures in place to obtain a legitimate ex parte search warrant, via the criminal justice system.

But there is an even more fundamental problem with this analogy.

If the police mistake your neighbor for a drug dealer, the neighbor no doubt will be traumatized, but at least he's an adult. If CPS, based on no more than an anonymous call, bursts through the door of your neighbor's house because they think he's a child abuser, it's innocent children who suffer.

It is children who will face traumatic questioning. It is children at risk of being stripsearched by strangers looking for bruises. And it is children who risk being torn from everyone they know and love and thrown into the chaos of foster care – where at least one in four is likely to be abused. The younger the child the greater the harm.

One need only recall the hideous conditions the FLDS children endured during the first days after the raid, and the searing statements from the state's own therapists concerning the harm this internment was doing to the children to understand why it is so urgent that children be protected from this unchecked power.

There are conservatives who have a lot to answer for, too, of course, particularly those, like Newt Gingrich, who want to throw poor people's children into orphanages – suggesting that he feels "family values" are strictly a middle-class entitlement.

But for the left, what it all boils down to is this: When it comes to child abuse, too many of my fellow liberals refuse to heed President Obama's call for us to live our values. Indeed, CPPP and too many other liberals apparently believe in a "child size" Bill of Rights. They shrink it by leaving out Amendment #4.

A smidgen of victory for Texas Children

Very good news for Texas children: Texas Governor Rick Perry vetoed SB 1440, the bill discussed in several previous posts to this blog. The governor says the bill "overreaches and may not give due consideration to the Fourth Amendment rights of a parent or guardian." There's no maybe about it. But the problem with the bill is what it would have done to the Fourth Amendment rights of children. The full veto message is here.

Among those probably most disappointed: Some of the reporters covering the bill, particularly, it would seem, the one for the Dallas Morning News, who now is parroting the party line suggesting the opposition is a vast right-wing conspiracy. He even wrongly labels one of the groups leading the opposition, the Parent Guidance Center, a "conservative group." And, of course, if you're for the bill, according to this reporter, you get the coveted label "child advocate" while if you oppose it you're a "parents' rights" group.

The Austin American Statesman was worse, refusing to acknowledge that anyone besides "conservative, libertarian and family-rights organizations" opposed the bill, (at least the reporter said "family"). Then, after a brief quote from the Parent Guidance Center, a huge portion of the story is devoted to comments from the bill's strongest backer, the Center for Public Policy Priorities, which offered up a series of misleading statements (about which more tomorrow). Both of these reporters love to refer to CPPP as a group "which advocates for low- and middle-income Texans" as though the one thing impoverished Texans want most is for their poverty to be confused with neglect and their children to be taken away. (In contrast, the San Antonio Express News didn't sink to cheap stereotyping in its story about several bills vetoed by the governor.)

In fact, this veto shows what can be accomplished when left and right put aside their differences – not forever, just long enough to find common ground and stop a bill that would have hurt children.

But there are limits to this victory. I said in a previous post that the bill effectively reduced the amount of evidence needed for CPS to enter a home from a smidgen to a tenth of a smidgen.

Now, if we can just increase the standard to, say, two or three smidgens.

TexProtects seems to think we’re pretty dumb

A group called TexProtects, The Texas Association for the Protection of Children, has put out an "Advocacy Alert" urging people to write to the Governor to ask him to sign SB 1440, that bill discussed in previous posts to this Blog that would legalize CPS' illegal behavior in cases like the FLDS raid.

Their argument boils down to this: Current law is terribly vague, but this bill supposedly makes things more specific. Therefore, TexProtects says, the bill "actually provides more protections for a parent in connection with orders in aid of an investigation."

Let's leave aside, for the moment, the phony notion implied by that statement that unlimited state power benefits children and basic due process benefits only parents. Let's ignore, for the moment, that in cases like the FLDS raid it was the children who suffered most from CPS' actions.

The argument from TexProtects still leaves out one small detail: Two key court rulings. One is the Texas Supreme Court ruling in the FLDS case, the other came from a federal appellate court in one of those rare cases where CPS picked on someone with the money to hire good lawyers. These rulings have filled in a lot of the blanks. Thanks to those rulings, the law now is a bit more specific. What SB 1440 really tries to do is undermine those court rulings and effectively return things to where they were before those courts ruled.

And let's get serious. If SB 1440 really increases families' protections, why are groups like Texas CASA and the Center for Public Policy Priorities, groups that strongly favored the FLDS raid, desperate to see SB 1440 become law? And why are so many groups that were against the raid urging a veto?

UPDATED JUNE 11: Texas: Where the stereotypes die hard

UPDATE: Thank you to the Dallas Morning News. While I disagree with some of how that paper's story today characterized what the bill, SB 1440, would do as compared with current law, the paper made a point of not stereotyping opponents ideologically.

I suppose if a newspaper in Texas calls your group "conservative" you should just shut up and let them believe it. But an old-fashioned belief in at least trying to be accurate, something carried over from my days as a reporter, compels me to set the record straight. The attempt to lump everyone opposing a dreadful bill now on the desk of Texas Gov. Rick Perry into the same ideological camp was not even the worst stereotype in the story. Also: The story misrepresents current law.

The story ran in the Fort Worth Star-Telegram today. It's about a bill I wrote about on this blog a few days ago, the one that would legalize the illegal behavior of Texas CPS in the FLDS raid and another case in that state.

The story begins this way:

A coalition of conservative and libertarian groups is urging Gov. Rick Perry to veto a bill that would make it easier for Child Protective Services to remove children from a home while investigating possible abuse.

That's stereotype number one. The story goes on to quote a conservative obligingly fulfilling stereotype number two by complaining that the bill undermines "parental rights."

In the most literal sense, both statements are true. What the reporter leaves out is that there are a whole lot of groups like NCCPR – filled with lifelong liberals – who think bills like this stink because they undermine children's rights.

Children have a right not to be traumatized by police and CPS workers based on no more than an anonymous call. Children have a right not to be stripsearched for no reason. And, most of all, children have a right not to be torn from everyone they know and love and exposed to the emotional trauma, and serious risk of physical or sexual abuse in foster care, based on no more than a caseworker's guess.

All this is why, when I wrote about the injustice of the FLDS raid for the website of a national magazine, it was for The Nation, not, say The Weekly Standard.

Similarly, there is nothing right-wing about the Parent Guidance Center, the excellent grassroots organization in Texas that has been among the leaders in opposing this bill.

Only at the very end of the story does the reporter concede that, well, yes, a blogger at the liberal Daily Kos said Perry should veto the bill – and so did Scott Henson of the excellent, and decidedly left-leaning Texas criminal justice blog Grits for Breakfast. But the bottom of the story is the traditional resting place for facts that contradict a reporter's pre-conceived notions.

Much higher in the story, there is this grossly-misleading description of the bill:

If the bill became law, a judge would be able to grant CPS a court order similar to a criminal search warrant, allowing a CPS worker to immediately enter the home and, if necessary, remove the child and secure medical and mental-health records as part of an investigation. It would be done without notifying the parent in advance.

That's wrong in what it says and wrong in what it implies. The bill would not create a procedure requiring an order "similar to a criminal search warrant." On the contrary, it would eviscerate an existing procedure that, even now, requires less than is needed in a criminal case.

Current law already allows CPS "to immediately enter the home and, if necessary, remove the child and secure medical and mental-health records as part of an investigation … without notifying the parent in advance." All the worker has to do is tell a judge a child is at imminent risk of maltreatment – and under some circumstances the worker doesn't need to go to a judge at all. The worker need offer only what amounts to a smidgen of evidence.

As I wrote in my previous post on this issue:

The reason for [the "imminent risk" standard] should be obvious. If the only alleged problem is that children face a threat that is not imminent, then there is time to hold a hearing before exposing children to the trauma of being questioned, stirpsearched, and often, torn away from everyone they know and love. In the FLDS case, for example, some of the allegations boiled down to the claim that very young children might be abused when they reached puberty. Now granted, there are a lot of delays in juvenile court – but ten years also usually is enough time to schedule a hearing.

What the new law does is lower the required amount of evidence to about one tenth of a smidgen. And no longer would there be a requirement that the child be in imminent danger before allowing a CPS raid without a hearing first.

When it comes to child welfare, both left and right have a lot to account for. Too many conservatives think family values are a middle-class entitlement only – like Newt Gingrich who wants to throw poor people's children into orphanages. And too many of my fellow liberals forget everything they claim to believe about civil liberties as soon as somebody whispers the words "child abuse" in their ears. So the fact that opponents of this bill include liberals and conservatives, advocates of children's rights and advocates of parents' rights is a good step in the right direction.

Texas tries to “legalize” FLDS-type raids

A couple of months ago on this Blog, I noted a solemn promise by Texas child protective service – a promise to, in effect break the law. I wrote that in stories about the FLDS raid,

The Salt Lake Tribune and the San Angelo Standard Times both report that Texas CPS says if they faced what CPS spokesman Patrick Crimmins called "the exact fact situation" again, they would do exactly the same thing again – take away all the children. But the Texas Supreme Court ruled that taking away all the children under these exact circumstances is illegal. As in, against the law. Did CPS forget that small fact – or do they just plan to break the law on purpose next time?

Clearly, the Texas Legislature couldn't stand for something like this – so they sprang into action: They passed a bill that would legalize CPS' illegal behavior in the FLDS case and another case in which their actions were struck down by courts. An excellent family advocacy organization in Texas, the Parent Guidance Center, reports that this language actually failed to pass on its own. It was sneaked onto another bill at the last minute.

Under current law, if CPS wants to rush onto someone else's property, demand entry, seize records question the children, stripsearch the children, and then seize the children and take them away, all without so much as a court hearing, CPS is supposed to convince a judge that it's a dire emergency. The judge needs to be persuaded that the children are being abused right now – or will be abused so soon that there is no time to even hold a hearing for the families to defend themselves.

The reason for this should be obvious. If the only alleged problem is that children face a threat that is not imminent, then there is time to hold a hearing before exposing children to the trauma of being questioned, stirpsearched, and often, torn away from everyone they know and love. In the FLDS case, for example, some of the allegations boiled down to the claim that very young children might be abused when they reached puberty. Now granted, there are a lot of delays in juvenile court – but ten years also usually is enough time to schedule a hearing.

Under the new bill, SB 1440, all CPS would have to do is file an affidavit claiming that

1. based on information available, a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect;
   
2. the requested order is necessary to aid in the investigation; and
   
3. there is a fair probability that allegations of abuse or neglect will be sustained if the order is issued and executed.
   

The law says nothing about when the child's "physical or mental health or welfare … may be adversely affected." It could be tomorrow, next month or years from now.

Johana Scot, executive director of the Parent Guidance Center, points out that "based on information available…" can be nothing more than an anonymous tip. She calls the "fair probability" requirement the "I swear what I'm about to find is true" clause.

As with most states, Texas has a broad, vague definition of neglect that easily is confused with poverty. So under the new law, all CPS needs to barge into any home at any time and take any impoverished child is an affidavit that says, in effect, "we think this family is very poor and it's likely that, once we get into the home, it will turn out that yes, they really are poor."

Or, in an FLDS-type case, they would need only present an affidavit saying "Sure the child's an infant now, but in 12 or 13 years…"

Indeed, this bill specifically rejects the notion that danger has to be imminent before CPS can skip over the niceties of due process. According to the bill:

This section does not prevent a court from requiring notice and a hearing before issuance of an order in aid of an investigation under this section if the court determines that:
(1) there is no immediate risk to the safety of the child; and
(2) notice and a hearing are required to determine whether the requested access to persons, records, or places or transport of the child is necessary to aid in the investigation [emphasis added].

First of all, the key words are "does not prevent." Courts would remain free to let CPS run roughshod over families even when there was no immediate risk to the safety of the child, if the court felt like it.

And the court would be required to let CPS do this, even when there was no immediate risk to the safety of the child if the court simply determined that it is necessary "to aid in the investigation."

Of course, even if the governor signs the bill, at some point, it may be challenged on constitutional grounds. But most children victimized by needless intrusion, stripsearches and foster care don't have parents who can afford such court challenges. And, of course, there's no guarantee such challenges will succeed; not when so many judges are afraid to look "soft on child abuse."

Living our values makes CHILDREN safer, too

    I'll bet a lot of my fellow liberals cheered last night when President Obama got to this line in his not-quite-a-State-of-the-Union address: "Living our values doesn't make us weaker," the President said, "it makes us safer and it makes us stronger."

    I checked a transcript of the President's speech just to be sure: There is no asterisk after that line, no parentheses containing the words "except if the allegation is child abuse."

For too many of my fellow liberals in the child welfare establishment, there is a mental asterisk when it comes to civil liberties. As long as you say the magic words "child abuse" it's o.k. to hold secret trials, it's o.k. to search homes and stripsearch children without a warrant, it's o.k. to deprive the accused of legal counsel, it's o.k. to detain children indefinitely based on a standard of proof no higher than "preponderance of the evidence."

    President Obama made the comment in the context of repeating his pledge to close the prison at Guantanamo. We on the left are all for it. But when the State of Texas held hundreds of innocent children in their own private Guantanamo last year, there was silence from the big, liberal child welfare groups. The Children's Defense Fund did not defend these children. They didn't seem to matter to Every Child Matters. Voices for America's Children stood mute.

    It's time the child welfare establishment erased the mental asterisk. NCCPR believes in civil liberties without exception. We have a Due Process Agenda because living our values makes children safer, too.

Britain, land of sunshine

    Long ago, when I was in journalism school, I was taught how fortunate American reporters are when they have to cover trials. Be glad you're not a reporter in Britain, we were told, where draconian laws keep the press out and bar reporters from publishing a fair proportion of what they manage to find out anyway.

    But in one sphere of justice, Britain is about to leap ahead of most of the United States. Starting in April, reporters will be allowed to cover Family Court proceedings, and accused parents will be allowed to talk about their cases, and provide documents. Journalists will not be allowed to name the families, however. That will leave Britain behind the 17 American states that allow reporters into these hearings – but ahead of all the rest.

    Of those states which have opened courts, not one has closed them again – even though courts often were opened at first as pilot projects or other experiments with "sunset" provisions. The courts have remained open because the Chicken Littles were wrong. None of the supposed harms to children predicted by critics actually happened, and over and over again, the critics became converts to openness. There are a variety of reasons for that, and they are discussed in detail in NCCPR's Due Process Agenda. See also the outstanding Pittsburgh Post Gazette series "Open Justice." And while opening courts has not worked miracles, it has improved the quality of justice in some systems, and brought justice to individual families in others.

    And yet, no matter how many times states succeed, every time the issue arises anew in the United States, the same critics – mostly people in the system who like wielding absolute power in secret – raise the same hypothetical scare scenarios.

    The opening of Britain's Family Courts was due in part to a concerted campaign by British newspapers, notably The Times of London. (In contrast, some American newspapers, normally so quick to wrap themselves in the First Amendment, have been surprisingly sanguine about this issue.)

    Among the stories told by The Times – to the limited extent allowed:

    ● A 17-year-old who approached the newspaper, wanting to tell his story. His sister had been taken, wrongly, before he was born. His mother was denied all chance to see her, then parental rights were terminated because the child had "bonded" with the foster mother. The boy almost was taken as well. But he couldn't say more because, as The Times reported,

"[H]e cannot be named until his 18th birthday and his social services referral sheet, which nearly separated him from his biological mother, cannot be published … {He] told The Times: "It's disgusting. It's my life and I want to talk about it, I want people to know so that maybe this sort of thing can be avoided in the future. It took me ages to get my court documents and even though they're mine, I can't make them public. Social services just get to cover things up and it's wrong."

    ● And then there's the case of the six-year-old who had a nosebleed. His father wiped his nose and took him to school. But his teacher noticed some dried blood. When the teacher asked what happened, the boy named his father and made a wiping motion. The father was exiled from the home for months. They were going to be reunited, but ultimately both the six-year-old and his younger brother were taken from both parents because, during supervised visits, the parents supposedly showed "inconsistent emotional warmth." (Yes, their system is just like ours.)

    Of course, the British child welfare establishment is no happier about the prospect of accountability than its American counterpart; they claim it's not a matter of secrecy, just privacy. But as Times columnist Camilla Cavendish, a reporter well aware that the errors go in all directions, wrote:

[I]f you are a parent wrongly accused of abusing your child, you do not want the kind of privacy which gags you from discussing your case. If you are a child tortured by a relative under the nose of the state, you do not want the kind of secrecy which protects professionals from scrutiny.

    In explaining his decision, Britain's Minister of Justice, Jack Straw, said that "Justice must be seen to be done."

    But I still think Judith Kaye, who recently retired as Chief Judge of New York's highest court, the Court of Appeals, put it best. Said Judge Kaye: "Sunshine is good for children."