Maine fails to keep a family apart forever just because of poverty – but not for lack of trying

The Maine Supreme Judicial Court

Compare the trauma Maine family police inflicted on this family to the restraint shown by their counterparts in Ohio in a case with some remarkable similarities – and one huge difference. 

It turns out that even in Maine, you can’t reach thousands of miles into another state, tear a child from his mother, and then keep him away forever solely because the mother can’t afford an apartment in Maine. But not for lack of trying. It took years of court battles before Maine’s Supreme Judicial Court ruled unanimously last week that a lower court was wrong when it did exactly that. And even now, the ruling doesn’t mean the child necessarily will get his mother back. 

The case illustrates one of the many points the take-the-child-and-run evangelists are desperate to avoid: Even when a child isn’t taken because of poverty “alone” and even when, as in this case, the court itself concludes the mother has gone “above and beyond” to do everything demanded of her, poverty alone often is the reason a family is not reunified. At least three separate studies have found that 30% of America’s foster children could be home right now if their families just had decent housing. This is the story of one such family. 

In this case, it appears, Maine’s family police agency, the Department of Health and Human Services, strove to keep this family apart forever for two reasons: It was more convenient for the agency, and they were “comparison shopping” and liked the foster parents better. 

As the Maine Monitor put it in an excellent story about the case: 

The ruling highlights the ongoing debate in Augusta about whether Maine’s child welfare system too often conflates lack of financial resources with abuse or neglect, as well as Maine’s recent history of taking children into foster care at higher rates than other states. It also puts into stark relief the consequences of Maine’s affordable housing crisis.

The facts 

The mother, referred to in the decision as “Karen,” has lived all her life in New Mexico. Her son has autism and “exceptionally high needs.” But the mother had a support network in her home state, and no one in either state ever accused her of not meeting those needs. She was living in an apartment in New Mexico she paid for in part with a Section 8 housing subsidy. 

But in 2021, Karen took her son with her to Maine to meet in person a man she’d met online. The man had prior convictions for domestic violence and assault, but there is nothing in the court decision to indicate that Karen knew that. But Karen apparently figured out she’d made a bad choice. Then she made another bad choice and a good choice at roughly the same time. She got drunk. But she didn’t stay with the man. On the contrary, she called 911 and asked for a ride home to New Mexico. 

One can imagine the glee with which the foster-care-at-all-costs crowd will greet those facts. Substance use! Risk of domestic violence! Certainly not poverty alone! But, of course, if Karen had money, she could simply have called a rideshare, gone to a hotel with her son, sobered up, and caught a plane home the next day. I wonder how many rich people do something similar after parties in Hollywood or the Hamptons? Since Karen didn’t have that option, she had to call police, who called DHHS, which promptly took away the child. 

Special note to the take-the-child-and-run finger-waggers

Before you get too censorious about Karen, be sure to compare her case to this other case, from Ohio, in the news lately. Here, too, Mom could be accused of making a bad choice in men, picking someone with a long list of “allegedlies” in his past – all of which he denies. But she married him, had a child with him, and, if her allegations are correct, (and again, he denies them), he committed domestic violence against her – in front of their two-year-old child. 

Family police agencies routinely investigate such mothers and often take the children, for “failure to protect” because they “allowed” their children to “witness domestic violence.” If the allegations are true, one certainly could make a case that, with hindsight, this mother’s decisions were as bad as Karen’s. Yet in this case, it seems, authorities have shown commendable restraint. No news account mentions this young child spending so much as a day in foster care. Anyone care to guess why?

Now, back to Karen’s story. After rubber-stamping the removal of Karen’s child, the court then ordered Maine to contact its New Mexico counterpart, the Children, Youth and Families Department, to arrange a placement in New Mexico. It took more than three months, but the child eventually was returned to Karen in New Mexico, but still under the supervision of the Maine family police. 

About three months later, a Maine caseworker called Karen. Apparently, Karen sounded intoxicated, so the Maine worker asked New Mexico authorities to check. According to the court decision, CYFD “took the child into custody” – but refused to keep him. The decision doesn’t say why. But as the Maine Monitor put it: 

Maine’s child welfare agency disagreed with its New Mexico counterpart. It took the child and put him in a foster placement across the country in Maine and thousands of miles away from his mother.  

As the story notes, at the time Maine had much more of a hair-trigger for taking away children than New Mexico – though New Mexico since has gotten far worse. 

Along with custody came the usual cookie-cutter “service plan.” Karen did it all, and then some.  As the court decision explained: 

The mother has resided in New Mexico throughout this case, having been a resident for her entire life. As to the requirements of the reunification plan, the court expressly noted that she went “above and beyond” what she has been asked to do by [the Department] to address her own individual issues.” She has completed intensive outpatient programs for both substance abuse and mental health treatment, in addition to receiving a neuropsychological evaluation. She continues to participate in mental health counseling and regularly attends parenting classes. Further, the mother joined and actively engaged with a domestic violence support group. All her random substance screenings have been negative. 

The mother “remotely attends many of [the child’s] medical and service provider appointments” and has become involved in multiple organizations, in New Mexico and online, focused on autism. She has a safe, well-maintained apartment in New Mexico, that is covered by a housing voucher. 

So what was the problem? Before reunifying the family, Maine DHHS wanted supervised in-person visits and a trial reunification. And DHHS insisted, for some reason, that had to happen in Maine. But hey, it’s not like they didn’t help: They paid Karen’s airfare and lodging – for two whole days – so she could search for housing she could afford in Maine. 

Now, consider: Even if you think everything DHHS did up to this point was justified, even if you think the supervised visits and trial reunification were essential, that still leaves one crucial question: Why didn’t DHHS simply send the caseworkers to New Mexico, bring the child, and supervise the visits there? Why didn’t the caseworkers stay in a hotel while the trial reunification took place in Karen’s actual home? 

But no.  I guess that would have been too inconvenient. Instead, the failure to find that apartment in Maine in two days became the sole reason a trial court terminated Karen’s son’s right to his mother (a more accurate description than termination of parental rights). 

There was also the matter of the foster parents, who have received high praise throughout, which suggests DHHS simply liked them better. 

Fortunately, the Supreme Judicial Court didn’t buy it. As the Monitor story noted: 

The high court reasoned that the mother had faced an impossible “Catch-22”: Either move to Maine, lose her housing voucher and be found unfit because she didn’t have stable housing; or stay in New Mexico with stable housing but be found unfit because she couldn’t be in Maine to take part in in-person supervised visits. 

So the termination has been undone. But that’s all. (In a concurring opinion, two justices suggested that the court should have done more.) The court did not order the family reunified. It did not order the child sent back to New Mexico. Maine DHHS is free to keep right on, in effect, holding him hostage in the foster home they love. They remain welcome to keep trying to dredge up other grounds to keep them apart forever – as long as they don’t repeat the mistake of explicitly blaming housing. 

That means, of course, that now that the case has dragged on so long, DHHS can take the ultimate low road and try to play the “bonding card” – since their preference for the foster parents is so clear. 

At least it will not go back to the same trial court judge. She’s retired.

Child welfare in New York: “Despicable” them.

That’s just one of the choice words appellate court justices applied to the behavior of the New York City family police agency during oral argument last week.

Imagine being 11 years old. You’ve moved with your brother and your mother to a new state to start a new life in a new school. Suddenly, armed sheriff’s deputies are marching through the halls, calling out your name. When they find you, all your new friends can see as they bring you to a semi-public place to interrogate you.  

Now imagine it’s Christmas morning. You’re at home celebrating, family are visiting. Suddenly the armed sheriff’s deputies are back, pounding on the door, loudly calling out that they’re there because there’s a child welfare agency case against your mother.  They demand entry, “observe” you and your brother and search the entire apartment, all in front of the guests. 

Of course, it’s all ok because a “child welfare” agency would only do this when parents are accused of beating or raping children, right?  Well, OK, maybe they’d also do it if parents were accused of starving children, or running a drug lab in a basement, right?  But they’d never, ever inflict so much trauma on children whose parents were accused of doing nothing to them at all – would they? 

Of course they would. It’s the sort of thing that happens all the time. But last week, in a scene that played out like the climax of a courtroom drama, one mid-level appellate court judge pledged that, at last, in one state, in at least one type of case, it will no longer be tolerated. She called the behavior of the agency in question, New York City’s Administration for Children’s Services (ACS), “despicable.”  

Said Presiding Justice Sallie Manzanet-Daniels: 

The issue here is that this woman has done nothing wrong, but she's being treated like a criminal, and her children are being retraumatized again and again. That's the issue here, and that's going to be put to a stop! 

You can see it all in the video above of oral argument in the case, known as Matter of Liam M. The argument starts at 2:22:22 in.  If you follow this link  it goes a little past that, to 2:38:00. That's the point where, at long last, an agency which normally is accountable to no one, finally is held to account for what it has done to so many children. 

Lawyers sometimes refer to judges who ask a lot of questions as a “hot bench.” This one was on fire. That requires some explanation. 

The context 

More than 20 years ago, a federal court barred ACS from tearing apart families and throwing children into foster care just because a parent, usually the mother, was herself a survivor of domestic violence. New York’s highest court, the Court of Appeals, effectively extended that statewide. (NCCPR’s Vice President, Carolyn Kubitschek, was co-counsel for the plaintiffs in that landmark case, which has been cited scores of times across the country in the intervening years.) 

Of course this didn’t stop the practice completely, but it curbed it. But the response from ACS could be summed up as: Oh yeah? Maybe we can’t take the kids, but we can still harass families with endless supervision and surveillance as much as we want! 

Two recent appellate court decisions stopped ACS from doing this at an early stage in the process. To which ACS effectively responded: Oh yeah? Maybe you can stop us early on, but we can still harass families with endless supervision and surveillance at later stages in the case! 

That brings us to the case argued last week. 

The facts of the case 

What might prompt such questioning from the justices? 

Here’s the backstory, as recounted in the brief for the mother, known as Ms. C., submitted by the Family Justice Law Center and the New York University School of Law (quotes in blue) and in oral argument, mostly from the Legal Aid Society, which represented not the mother, but the children (quotes in green). (And, lest there still be any question who really is on the side of protecting children here, they were supported, through amicus briefs, by, among others, Children’s Rights, Lawyers for Children, who do what the name implies, and the National Association of Counsel for Children.) 

The family is from Florida. They moved to New York to be close to the children’s grandmother, who was suffering from cancer. They moved to a New York home that the mother owned with her ex-husband. On one occasion, the ex got violent with her in front of the children. The mother did everything right, immediately calling the police and then getting all the court orders she needed to kick the father out of the house and keep him out. He followed those orders to the letter. 

The father consented to a finding of neglect against him. The mother was never charged with anything, and, indeed, ACS records repeatedly attest to the fact that she took excellent care of the children.  Eventually, she and the children moved back to Florida. So any supposed “threat” from the father was now 1,300 miles away. 

But through it all, ACS repeatedly demanded that the mother and the children be under their surveillance and control, and the Family Court repeatedly rubber-stamped those requests. The only grounds ever given for this surveillance: the father had not yet jumped through all the hoops in his case plan. 

Here’s what this did to the family: 

ACS monitored Ms. C.’s care of her children for more than five months, conducting numerous announced and unannounced searches of her home, from which the respondent father remained judicially barred. Caseworkers searched every room in the apartment during every home search. They even repeatedly inspected inside the refrigerator. 

I keep wondering: Did ACS think the father was hiding in the fridge?  

When ACS said, “Jump!” the family immediately had to say, “How high?” If they weren’t home when the caseworker was at the door, they had to drop everything and race back there – even when they were visiting their grandmother, sick with cancer. 

When the family moved back to Florida, things actually got worse. ACS went high-tech, demanding the right to virtually enter the home at any time and surveil every room (and, yes, the refrigerator again) by video. But that wasn’t enough for them. They recruited armed Florida sheriffs to inspect the family in person, and not just at home. As the children’s lawyer told the court, and the brief explains, one of the children 

was at school with her new schoolmates, and these unformed people with guns come, like, running into the school, calling out her name and saying they're there on behalf of ACS. They take her out of class. They interview her in a quasi-public space. Kids she wanted to be friends with saw. 

She began “shaking and crying with embarrassment and rage” and “yelling at the sheriffs to leave her alone.” 

She was so humiliated and mortified, her mother had to come to school to take her off campus. She couldn't even calm down. She was so upset. 

And after that, it was hard for her to even come back to school. But when she did come back … she started having problems that she had never had before. She started having behavioral problems. She started getting in fights. … 

She's finally doing better now, but it took a while. It took a really long time. 

And then, two months later, this happened: 

On Christmas morning, ACS sent armed sheriffs to Ms. C.’s apartment. In public outside the apartment building, the sheriffs loudly announced that they were there because of a children’s services case against Ms. C. and demanded to see her children. The sheriffs observed Liam and Sari and searched the apartment. Ms. C. had family over for the holiday and testified that the law enforcement search was “humiliating.”… 

Ms. C. felt “constantly threatened” that she would lose her children if she did not comply, a possibility that kept her awake at night. As she explained, “I [felt] like I left one abuser for another. …  ACS use[d] methods of control, including sending sheriffs to my apartment, to remind me that they’re in charge.” 

[The children] felt “watched and controlled” by ACS, and were “embarrassed and frightened” by sheriffs demanding to see them at school and at home … They implored the caseworker directly: “we don’t want to talk to you, don’t call us.” 

Even a family court judge overseeing the case said: 

“[I]t bothers me that ACS reached out to the Florida law enforcement authorities that put [Ms. C.] and her children through . . . these embarrassing ordeals.” 

But the judge let ACS keep on doing it anyway. 

Now, however, some appellate justices are making clear they’re not going to tolerate such “despicable” behavior.

Child welfare in New York City: Rebellion on the horizon?

THE CITY's outstanding examination of
"mandatory reporting" (And in case anyone doubts
that "child welfare" agencies like New York's 
Administration for Children's Services are 
"family police" - take a look at that car.)

This week the New York City online news site THE CITY published one of the best dissections I’ve ever read concerning the enormous harm of “mandatory reporting” laws. Those are the laws that require workers in scores of professions to report their slightest suspicion of “abuse” or “neglect” to family police agencies.  I included excerpts from THE CITY’s story in our weekly news round-up. 

Now, however, I want to focus on one part of the story that may be of particular interest to advocates in New York City.  It concerns an organization called Safe Horizon which, as the story points out 

runs both the city’s domestic abuse hotline and its child advocacy centers, where children who may be victims of sexual and severe physical abuse are interviewed by detectives, pediatricians and child protective investigators. 

The domestic abuse hotline is separate from the child abuse hotline which is run by New York State. Child advocacy centers can do a lot of good. But they, and their trade association, also often do a lot of harm.  Here’s a case in point.  Another example: Their role at the epicenter of promoting the pandemic of fear concerning child abuse and COVID-19. 

In light of the track record of some of these centers in general and the history of Safe Horizon in particular. what might be a bit of a rebellion on the part of the rank-and-file is striking. 

First some context: 

Of all those who suffer from mandatory reporting laws, those who suffer most might be survivors of domestic violence and their children. The trauma inflicted on children by needless investigation and removal is even worse in such cases than in others. That’s why it’s actually illegal in New York to tear a child from a mother whose only “crime” is to have “allowed” the child to see her being beaten. 

Of course, just because it’s illegal doesn’t mean it’s stopped. And another lawsuit is challenging the other ways in which the city harasses domestic violence survivors.  

Most tragically, all this stops survivors from coming forward – because of the sadly reasonable fear that seeking help will lead to their children being taken. (When we get to the history section, we’ll have a case in point.) So at a bare minimum, people who work with survivors should be allowed to exercise their professional judgment in determining when to report and when not to report. Incredibly, Safe Horizon seems to have no confidence in its own staff to do just that.  And that brings us to … 

… something that sounds like a rebellion 

As THE CITY reports: 

At [a New York State Assembly] hearing on mandated reporting in 2023, Megha Sardana, a representative from Safe Horizon … testified that she and many of her colleagues experience the mandate to report as a barrier to trust that  “prevents us from really providing that support and access to healing for families.” 

“We have staff who describe the wounds that they experience as mandated reporters as moral injury and that they carry these stories with them for years and even decades later and are haunted by the calls that they have made to the [State Central Register],” she added. 

During the question-and-answer period, Sardana felt so strongly that she went rogue, veering from Safe Horizon’s official policies to state: “If I’m answering as an individual rather than as a representative of Safe Horizon, I don’t think mandated reporting can be reformed. I believe that it should be abolished.” 

She added that other Safe Horizon employees had discussed asking for an exemption from mandated reporting from the state for people working with domestic violence victims — a request that top Safe Horizon leadership made clear in an interview with THE CITY they were not making at this time. [Emphasis added.] 

To understand Safe Hrizon’s apparent distrust of its own staff, we need to delve into … 

… the history 

I first became aware of Safe Horizon in early 2006. I was in New York City a few months after the death of Nixzmary Brown, a tragedy that set off a huge, media-fueled foster-care panic. In fact, you couldn’t not be aware of Safe Horizon then. In the wake of Nixznary’s death, they plastered the city’s busses and subways with ads like this one, featuring Mariska Hargitay, star of Law and Order SVU. 

A major way Safe Horizon suggested turning your outrage and grief into action was by donating to Safe Horizon. At the time their website had four different “donate” links (including the Hargitay image) before you got halfway down the homepage. 

Click on Hargitay’s image and, along with the pitch for money, you got to this claim: 

More than 50,000 cases of abuse and neglect are reported each year in New York City. 

In fact, the 50,000 figure was the number of calls alleging some form of “abuse and neglect” referred from the state hotline to the city family police agency for investigation.  The overwhelming majority were false, and the overwhelming majority of the rest were “neglect” which often means poverty. 

Safe Horizon is not much more subtle today – referring to seven million children who “come to the attention” of family police agencies nationwide – a figure that is, in fact, the total number of calls received by child abuse “hotlines.” Of that seven million roughly two percent turn out to be cases in which a caseworker checked a box on the form indicating it was at least slightly more likely than not that physical or sexual abuse occurred. 

The scare number is followed by a list of “Signs of Child Abuse” that includes almost every possible negative change in a child’s behavior.  The website describes these as “common” signs of abuse. There is not even the usual boilerplate note of caution that these could be  “signs” of anything other than child abuse. 

The Fairstein Factor 

Linda Fairstein

In addition to Hargitay, back in 2006, the Safe Horizon website featured an endorsement from Linda Fairstein, who called Safe Horizon 

the organization that does more than any other to help New Yorkers feel safe in their homes and in the community. 

Does that name seem vaguely familiar? Perhaps it's because Fairstein was the prosecutor in the notorious case of the Exonerated Five. Fairstein remained on the board of Safe Horizon for 17 years after the five were exonerated and her own role came under scrutiny.  Although the Safe Horizon website includes a list of board members “emeriti,” Fairstein isn’t included. 

And how does this all play out in the lives of domestic violence survivors? Remember that domestic violence hotline? Mother Jones describes what happened after Angeline Montauban called it: 

While her partner and their 2-year-old son slept, Montauban retreated to the bathroom with her cellphone. She dialed the number of Safe Horizon, a domestic abuse hotline whose services include counseling and relocation assistance she had seen advertised in subway stations for years. Montauban had just experienced violence at the hands of her partner that made her fear for her life. Trying to stay as quiet as possible, she was looking for help to break a cycle of toxic behavior. Maybe Safe Horizon could refer them to couples therapy or find transitional housing for her and her son as they worked things out. 

It didn’t work out that way. Montauban was turned in to the family police. She waged a five-year fight to get her son back from foster care. As Mother Jones reported, “She never regretted anything more in her life than making that call to Safe Horizon.” 

Perhaps had Safe Horizon workers been allowed to exercise their professional judgment concerning whether or not to report it would have been different. But they can’t – and it seems their own management doesn’t trust them enough to seek to change that. 

No wonder a senior staffer at Safe Horizon “went rogue.” Perhaps more will follow.

A New York State “child welfare” agency can curb one family policing horror with the stroke of a pen. Do they have the guts?

The number of ways family policing agencies (a more accurate term than “child welfare” agencies) can hurt the children they are mandated to protect is limited only by their imagination – and, unfortunately, this is the one area where they show any imagination at all. 

Among the worst things they do is tear children from the arms of parents – usually mothers – whose only crime is to, themselves, have survived domestic violence.  Among the reasons this does so much harm to children: 

● Research shows the trauma caused to children when they’re separated in these types of cases is even worse than the trauma in other situations.  One expert said taking children under these circumstances is “tantamount to pouring salt into an open wound.”  Unfortunately, at most family policing agencies their policy can be boiled down to “please pass the salt.” 

● Research shows the trauma of removal in such situations is worse than any trauma that may be caused by witnessing domestic violence.  In part, that’s because some children believe they must be responsible for their mother being beaten and now they are being punished. 

● Fear of family police coming to take away the children deters women from seeking help – and abusers know it.  One battered mother in Los Angeles whose children were taken summed it up simply: “I called the police for help, but I should have just let my ex-husband beat my ass.” 

That’s why a successful class-action lawsuit, Nicholson v. Scoppetta, curbed the practice in New York.  (NCCPR’s Vice President was co-counsel for the plaintiffs.)  You can read all about the lawsuit, and the research on this topic on our website here.  The federal suit was aimed at New York City’s family policing agency, the Administration for Children’s Services (ACS), but for complex legal reasons the issue also wound up before the state’s highest court, the Court of Appeals, which extended its potential impact statewide. 

And what was the response of ACS to all this?  In effect, they said: Well, maybe we need some other excuse to take away the children, but nothing stops us from endlessly harassing battered mothers and their children with oppressive surveillance!  So that’s what they’ve done.  And now there’s a new lawsuit to try to stop that practice as well. 

The agency that could help 

But there’s a state agency that could put a stop to a lot of this instantly, simply by making it harder for the process to get started in the first place.  To understand how, we need to understand how these cases usually come to the attention of family policing agencies. 

In the case that is the subject of the new lawsuit, The Imprint reports, the state child abuse hotline

 was notified of the domestic abuse from the mother’s therapist, whom she had confided in after telling [her abuser] to leave for good. 

Therapists are, of course, mandated reporters of “child abuse.”  Even had that therapist realized how much harm it would do to call in a report, the therapist may well have felt s/he had no choice. 

But there is an agency in New York that could fix that. It’s the New York State Office of Children and Family Services (OCFS). 

In New York, county governments (and New York City) run family policing.  OCFS theoretically
performs oversight.  Mostly that means interference that makes nothing better and sometimes makes things worse, as with their support for what should be called sugar-frosted foster care.  But its primary function is to enable mutual buck-passing.  Localities get to say: “The state made us do it!”  while OCFS gets to say: “That was [locality’s] responsibility.” 

One of OCFS’ few concrete functions is running the state’s child abuse hotline.  In an approach perfectly designed for maximum buck-passing, OCFS takes the calls from mandated reporters – like that therapist.  They then decide whether to “screen-in” the call for investigation.  Any call that’s screened-in is passed on to localities, which, almost always, must investigate them. 

OCFS does something else: It designs the online training course for mandated reporters.  Indeed, in what may be the first genuinely useful thing it’s done in decades, if ever, it improved that training course.  The new course is a muddled mess of mixed messaging. But that’s way better than the old training or any other training I’ve seen in any other state.  In those other courses, the message can be boiled down to Report! Report! Report! 

Now OCFS has a chance to make a much more substantive improvement – this time without confusion, hedging or ambiguity:  Simply change the training to specify that a child witnessing domestic violence, or a parent being a survivor of domestic violence is not grounds to call the hotline.  Then, if mandated reporters, or others, persist in making such calls, instruct the hotline operators to screen them out. 

What the Legislature could do 

These are things OCFS can do entirely on its own.  There also are steps the New York State Legislature could take. 

● Ideally, of course, the legislature would abolish mandatory reporting altogether. That is not the same thing as abolishing reporting; it simply would free professionals to exercise their professional judgment.  But short of that, there still are things the Legislature could do: 

● It could write into law that witnessing domestic violence is not, in fact, child abuse or neglect and therefore should not be reported. 

● It could exempt from mandatory reporting requirements any professional whose primary work is with domestic violence survivors. 

● More generally, the Legislature could create an “off-ramp” for mandatory reporters.  The theme of OCFS’ new training – stolen from family advocate Joyce McMillan of JMAC For Families -- is “you don’t have to report a family to support a family.”  

But if mandatory reporters opt to support a family and not report a family, they might still face penalties if something goes wrong and some grandstanding county district attorney decides to “make an example” of them. 

The Legislature could prevent that by changing the law to specify that when mandatory reporters, exercising their best professional judgment do indeed try to support a family instead of report a family – by, say, referring parents of a hungry child to a foodbank, or a homeless family to a housing agency, this is deemed equivalent to a report, and the reporter is exempt from any penalty. 

But, again, when it comes to domestic violence survivors, OCFS doesn’t have to wait for the legislature to take a big step forward.  The question is, does OCFS even know what stepping forward means?

Child welfare in Massachusetts: A commission report suffers from “The Mossaides Touch.”

The Massachusetts Mandated Reporter Commission was chaired by, staffed by, and repeatedly mislead by the state’s “Child Advocate,” Maria Mossaides.  Despite the best efforts of dissenting commissioners, the Commission’s final report remains largely an exercise in misdirection.  

Here, we single out an example worthy of Orwell: She turned an argument on behalf of doing more to protect the children of battered mothers from being thrown needlessly into foster care into an argument for doing nothing.

Over the past several months, I’ve written repeatedly about the Massachusetts Mandated Reporter Commission.  The Commission was chaired, and staffed, by the office of the Massachusetts “Child Advocate,” Maria Mossaides.  Mossaides has long been among the state’s foremost proponents of expanding the child welfare surveillance state and using what amounts to a “take the child and run” approach to child welfare.

Her strongest allies on the Commission were representatives from the agency that takes those children, the Massachusetts Department of Children and Families and its parent agency, the Executive Office of Health and Human Services.  They seem to believe that a state that already takes away children at a rate 60% above the national average still isn’t taking enough.

For more than a year, Mossaides made sure the Commission heard only those who shared her general outlook.  But then, after already drafting a series of proposed recommendations, the Commission finally held a public hearing.  At that hearing, commissioners finally heard the information Mossaides had kept from them for so long.  Several commission members said they were “shocked” “surprised’ and “taken aback.”

As a result, in its final report, the commission made no actual recommendations to the Massachusetts Legislature.  Dissenting commissioners demanded changes in the way the final report presented the issues.  They got a few of those changes, particularly in a preamble to the report.  But it was not enough to stop Mossaides and her allies from skewing the narrative in the 93-page final report to support the recommendations the commission would not actually make – and oppose one of the very few that might make things a little better.

NCCPR is preparing a detailed, page-by-page analysis of the document. But one application of what might be called “The Mossaides Touch” is so disturbing – and do cruel – that I’m highlighting it now.  That one statement effectively reverses the true meaning of public testimony, in order to advance the goals of Mossaides and her allies.  It concerns one of the biggest problems with mandatory child abuse reporting laws: The harm done to the children of battered mothers.

The issue in context

Let me start by recapping part of a previous post:

Of all the tragedies inflicted on children by the nation’s family policing agencies, few are worse than tearing a child away from a parent (usually a mother) whose only “crime” is to herself be a survivor of domestic violence.  

All of the trauma for a child is compounded if the removal was for this reason.  One expert called it “tantamount to pouring salt into an open wound.”  He testified in a lawsuit that led to making the practice illegal in New York State. (NCCPR’s Vice President was co-counsel for plaintiffs.)  But, as I’ve often written before, in much of the country, family police agency policy on this issue boils down to “please pass the salt.”  That is certainly true in Massachusetts.  And the state family policing agency is fighting tooth and nail to keep things just the way they are. 

As with so much that’s wrong in child welfare, the harm begins with mandatory reporting.  A battered woman works up the courage to break free from her abuser, often for the sake of the children.  But almost anywhere she turns for help, the helper is a “mandated reporter.”   Whether that reporter thinks it’s a good idea or is just afraid to do otherwise, the reporter may well call the family police.  If you want to know what happens next,  please take two minutes – just two minutes – to listen to this excerpt from the testimony of Western Massachusetts Attorney Michelle Lucier before a commission studying mandatory reporting in that state:

NCCPR · Excerpt from Testimony of Attorney Michelle Lucier before Mass. Mandated Reporter Commission

 Then, for additional context, please read the testimony from Jane Doe, Inc, the Massachusetts Coalition Against Sexual Assault and Domestic Violence.  That will give a full understanding of how widespread the problem is – and how it places both battered women and their children in danger by deterring them from reaching out for help.  National research confirms it. 

Turning testimony on its head

One of only three draft recommendations from the commission that actually would make things slightly better concerns this issue.  An earlier Commission document put it this way:

[P]ersons who provide direct confidential services to victims of domestic violence, sexual assault, or human trafficking should be excluded from mandated reporting responsibility. The reasoning behind the proposed exclusion is to reduce the barriers, or perceived barriers, in the way of persons who may be seeking immediate physical safety. Persons who seek physical safety are likely to be seeking to improve the safety situation for their children. 

Jane Doe, Inc. and others who testified said this did not go nearly far enough – because battered women are likely to come into contact with so many other mandated reporters. 

As Jane Doe’s written testimony explains:

We appreciate the consideration of excluding sexual and domestic violence advocates from mandatory reporting requirements and recognize that this exclusion was considered to address the need to maintain relationships between these providers and survivors in their communities. However, these exemptions will not suffice.

Jane Doe did not say this was a reason to do nothing, rather the group said it was a reason to do far more.

During Commission deliberations, Mossaides and her allies made clear they opposed any exemption for any mandated reporter when a battered mother comes to that mandated reporter seeking help.  So now, behold how the Mossaides Touch stands the argument from Jane Doe, Inc. and others on its head – weaponizing it against the children of domestic violence victims.  According to the final report:

The Commission members expressed some opposing viewpoints on this proposal and Commission discussion ended by discussing that it is unlikely that such an exclusion would have the desired effect as victims of intimate partner violence, sexual assault, or human trafficking come into contact with many other mandated reporters besides those providing direct confidential services.

It's not clear when the Commission as a whole reached any such conclusion (I never heard them say such a thing, though I missed one meeting following the hearings.)  

But more important, since the testimony at the hearing urged the commission to do more, not less, this sounds more like Mossaides misinterpreting the intent of public hearing speakers – in fact, turning that intent upside-down.

I heard no one at the hearing say that because giving battered mothers one or two people in whom they could confide without fear of triggering an automatic report to a child abuse hotline isn’t enough, it made more sense to continue to offer them none. 

Rather, what groups such as Jane Doe, Inc. said is that this meager proposed exemption does not make up for the additional harm to battered mothers and their children that would result from enacting so many of the Commission’s other draft recommendations that would vastly expand who must report and what must be reported.

Though the report’s handling of the domestic violence issue is the most blatant example, it is the approach seen throughout what is technically a report from the Commission, but really a report from Maria Mossaides and her allies. 

That’s not because they are ill-motivated.  It’s way worse than that.  They actually believe massive intrusion into families, especially poor families of color, protects children. (It doesn’t.) They see themselves as what their 19^th Century predecessors proudly called themselves: “child savers.” That breeds an ends-justify-the-means mentality that’s been aptly described as “health terrorism.” 

It would be far better if Mossaides and her allies were ill-motivated.  Then one could appeal to their consciences to get them to change. 

Instead, thousands of children – especially poor children, children of color, and children of battered mothers – are paying the price for Maria Mossaides’ good intentions.

Rubbing salt into children’s wounds: Why is this horrible child welfare practice illegal in New York – but perfectly fine in L.A.?

The California online news site Capital and Main has an excellent story about how California in general and, apparently, Los Angeles in particular, makes the plight of the children of battered mothers infinitely worse by blaming the mothers for being beaten and consigning the children to foster care.  The charge is “failure to protect” – as in failure to protect the children from seeing their moms being beaten.

The story cites the case of Ingrid Archie.  She was charged even after she fled from her abuser, got a restraining order and moved to a domestic violence shelter. Nevertheless her children were taken – and she was jailed.  Then in a twist that’s Kafkaesque even by child welfare standards, she was charged with “failure to protect” again – because, while she was in jail, her oldest daughter was sexually abused in foster care.

The ways in which this all makes children less safe are legion – not least the fact that it discourages battered women from seeking help. They’re actually more likely to stay in abusive relationship for fear that if they seek that help, they’ll lose their children. Indeed, as reporter Angelika Albaladejo explains in her story, that fear is even exploited by abusers who sometimes threaten to turn their victims in to child protective services if they try to leave.

But there’s another harm as well.  As traumatizing as it is for children to be thrown into foster care, that trauma is actually worse when the child has witnessed domestic violence.  One expert called removing children under such circumstances “tantamount to pouring salt into an open wound.”

We know this because these experts testified in a landmark class-action lawsuit that got this horrible practice banned in New York City. NCCPR’s Vice President, Carolyn Kubitschek, was co-counsel for the battered women in the case, known as Nicholson v. Scoppetta. (Due to some odd legal twists and turns, the ban theoretically applies statewide, but I doubt it’s being enforced Upstate.)  You can read the expert testimony as summarized by the judge, the stories of the plaintiffs and the judge’s full, scathing 183-page decision on NCCPR’s website here.

Remarkably, though New York City’s child welfare system has plenty of faults, and indeed, may be backsliding on this issue, the Nicholson consent decree has significantly reduced the needless removal of children of battered mothers.

The reasons for LA’s failure

So why is L.A. so far behind?

First, of course, in this case, because in New York they won that lawsuit. I know of none other like it anywhere else in the country.  But there also are other reasons Los Angeles lags behind. They’re the reasons Los Angeles always lags behind:

● New York City has a relatively strong family defender community, with aggressive institutional providers that fight hard for their clients.  They can fight, case by case, to make sure the city’s child protective services agency follows the consent decree.   There is nothing like it in Los Angeles.

● New York City has a mediocre child welfare agency chief and a mayor who, on child welfare, shows no courage.  But at least the City Council understands these issues and, particularly in recent years, has worked to hold the city child protective services agency accountable.  In contrast, Los Angeles has had a long succession of poor child welfare leaders, and the current one, Bobby Cagle, has a particularly poor track record.

And the Los Angeles County Board of Supervisors, which effectively functions as both the legislative and executive branch, may well be the worst governing body in America, with politicians seemingly in a never-ending race-to-the-bottom when it comes to demagoguery about child welfare.

All of this also explains why Los Angeles takes away children at a rate more than double that of New York City.

The issue is not all that complex

Although the Capital and Main article is outstanding, there are a couple of points with which I would take issue.  

One is the idea that the rush to remove children in these cases amounts to “prioritization of the immediate safety of the child” – at the expense of all sorts of other harm to that child.  In fact, even that assessment is too generous.  What’s really being prioritized is the immediate “safety” of everyone from the caseworker to the agency chief; all of them terrified of leaving a child home and being blamed if something goes wrong.

Indeed, as Albaladejo notes: 

In Los Angeles County in recent years, concerns over protecting children have come to a head after several high-profile murders of children at the hands of abusive parents generated public scrutiny of [the county’s child protective services agency’s] practices, and encouraged a more reactive response.

That is a polite way of saying: There’s probably a foster-care panic underway right now.

As for the child, she or he may well wind up less safe physically – as is illustrated by what happened to Ingrid Archie’s oldest child; an illustration backed up by the data on the widespread extent of abuse in foster care.  And that’s before we even get to the additional emotional trauma.

I also question the idea that all of these cases are unusually “complex” and workers need lots and lots of that all-purpose child welfare bromide: “training.”

Some cases undoubtedly are complex.  But these also are cases in which there’s a vastly better way to “prioritize the immediate safety of the child” that’s also pretty simple: Instead of making it the victim’s responsibility to flee and, even then, sometimes taking away the child, why not remove the abuser from the home?

As I’ve noted before on this blog, there’s a readily available method to accomplish this: It’s called arrest. And there is a readily available placement for the abuser: It’s called jail.

As for training: Allow me to provide the entire training curriculum needed for this approach:

1.       . Taking children from battered mothers in itself inflicts severe emotional abuse on those children
2.       . Therefore, don’t do it.
3.      ..  Remove the abusers instead.

Abuse of power: In New York City, hundreds of children thrown into foster care in so-called “emergencies” are sent back home within days or even hours – which almost always means there was no emergency

Removals that last a few days or less are long enough to traumatize a child but short enough to come up with better alternatives.

Family defenders testify before the New York City Council
about how the city child welfare agency abuses its power to
throw children into foster care in "emergencies."

Video of the full City Council hearing discussed below is available here. The good part starts at 2 hours 21 minutes in.

We all know the classic party line from child welfare agencies: Hey, they tell us, we don’t take children, a judge has to approve everything we do, so there’s due process for families.

As it happens, in a column for Youth Today last week, I just cited New York City as an example of why this isn’t true.  At a New York City Council hearing last week, the evidence that the claim is false became even more compelling.

In New York City, roughly half of all removals are done without any judge approving them first – not even at a so-called ex parte hearing where only the city child welfare agency, the Administration for Children’s Services, makes its case. The worker simply takes away the child on the spot. 

Nearly two decades ago, in a case brought by NCCPR’s Vice President, a federal appellate court found widespread abuse of the emergency removal power. But those abuses have continued under one ACS administration after another – causing enormous needless trauma for thousands of children.

The very act of taking the child first and going to court later further stacks the deck against families at that first court hearing.  That hearing usually is supposed to take place in roughly one to three days - though ACS has been known to stall. 

The number ACS finally disclosed

And that makes a number ACS finally owned up to this week even more shocking: For months, ACS said it just didn’t have a way to count how many times, at that first hearing, judges say, in effect: “This case is a load of b.s.” and send the child home – or ACS simply admits as much – or, more likely, comes up with some way to save face and let the children go home.

For an example of such a case, and how it traumatized the children, listen to thisexcellent documentary from NPR’s LatinoUSA – in particular the section that starts at 17:05 in:

But at a City Council hearing last week, ACS produced a number.  ACS says that in City Fiscal Year 2018 20 to 25 percent of “emergency” removals were such non-emergencies that the children could go home at that very first hearing.

That’s roughly between 370 and 460 children torn from everyone they know and love, not knowing what would happen next, enduring a trauma that, if a child is young enough, is akin to a kidnapping - only to find that, as soon as someone other than ACS itself looked at the facts, they could go right home again.

(In fact the number of needless “emergency” removals probably is a lot higher, given the low standard of proof required to hold a child in foster care and given one fact that never changes: Judges know that they can rubber-stamp ACS hundreds of times and, though the children may suffer terribly, the judge is safe. Overrule ACS once and have something go wrong and the judge’s career can be over.)

And if the harm to these children isn’t bad enough, think of all the time, money and effort wasted on these cases – time, money and effort that was, in effect, stolen from finding children in real danger.

Of course ACS Commissioner David Hansell wasn’t about to admit his agency was wrong to take away those hundreds of children.  According to a story in the Chronicle of Social Change,  Hansell said that, in most cases, at that first hearing

 “ACS has consented,” to a judge’s decision to return a child home — because, for example, a supervision plan had been put in place with the parents or other family members, or an order of protection had been approved against an abuser in the household.

But we’re talking about removals that often last a few days or less – that’s long enough to traumatize a child but short enough to come up with better alternatives – if you doubt it, listen to that Latino USA story. 

Even assuming the ACS caseworkers got the basic facts right – and that’s sometimes a stretch – consider the very example Hansell cites:

Instead of removing the child while awaiting that order of protection how about removing the alleged abuser?  There’s a mechanism for that: It’s called “arrest.”   There’s even a placement available: It’s called “jail.”

And if they really can’t do that, why not just post a guard outside the house until the order of protection is obtained?  Or move the entire family – minus the alleged abuser – to an undisclosed location for a few days? Instead, ACS chooses to punish the children with needless foster care. 

As Tehra Coles, litigation supervisor for parent defense at the Center for Family Representation, said at the hearing:

Many of the cases filed, in our view, did not need a court filing. Any risk to a child could have been mitigated by connecting the parents to needed services.

Is ACS backsliding on protecting children of battered mothers?

The hearing also raises new questions about how ACS is approaching cases involving domestic violence.

Hansell said that one reason for a big increase in court cases filed against families from 2015 to 2017 was “a sharp increase in the number of indicated investigations with domestic violence present in the home.”

That can mean a lot of different things.  But, thanks to another lawsuit (in which, again, co-counsel for the plaintiffs was NCCPR’s Vice President) it happens to be illegal in New York City, in fact in all of New York State, to take away children because they witnessed domestic violence – typically the father or another man beating up the mother.

That’s because all the inherent trauma of removal actually is worsened for the child if that child is being removed from a mother who was, herself, a victim of domestic violence.  Indeed, during testimony in the class-action lawsuit one expert said that, for the child this is “tantamount to pouring salt into an open wound.”

Under past administrations ACS did fairly well in complying with the consent decree that emerged from this lawsuit.  Indeed, compared to much of the rest of the country, New York City was a leader.

But Hansell’s whole tenure at ACS has been marked by retreat from reform and dissembling about data.  His comment at the hearing raises questions about whether ACS is backsliding here as well.