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

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

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

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

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

The background

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

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

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

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

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

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

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

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

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

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

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

Pennsylvania’s weird system 

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

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

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

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

           

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

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

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

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

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

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

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

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

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

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

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

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

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

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

            Or:

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

            Here are some reasons why Option 2 is more likely.

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

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

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

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

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

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

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

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

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 solutions: Paging Captain Obvious

Two recent child welfare columns in the Chronicle of Social Change (the Fox News of child welfare) this publication make me wonder if Captain Obvious has taken early retirement.

1. IF THAT’S HOW THEY TREAT FOSTER PARENTS…

Jim Kenny has posted a series of columns on the appalling problem of false allegations of child abuse and lack of due process – for foster parents.

He makes some good points. So good that I’ve taken the liberty of reprinting most of three paragraphs from one of his columns, exactly as they appeared originally – except for the deletion of a single word:

In an understandable attempt to protect a child from abuse and neglect, our child welfare systems have placed foster parents in a difficult position. To encourage reporting of child endangerment, anonymity is granted to the accuser. Minimal standards of proof are accepted. Hearsay is allowed. Often, what the case manager believes to be credible is enough to initiate some action. The child may be removed …

 As the most vulnerable party, the child’s well-being is the number one priority. Yet the child’s needs are not necessarily contrary to those of the foster parent. In fact, an unexamined precipitous separation of the child from his foster family may be harmful. In many ways, the child’s best interests and those of the foster family are tied together. …

 Foster parents deserve better treatment than the substantiation of unproven charges based upon hearsay. We can still protect the child while providing fosterparents with all the rights that our legal system guarantees.

When foster parents tell me about their ill-treatment I always say the same thing: The system really needs you. If that’s how they treat you, how do you think they treat the birth parents?

Think about that long enough, and you might start to do what former fosterparent Mary Callahan did – start questioning what child welfare agencies told her about the children they were placing with her.

And then you might want to reconsider whether all those children really need to be taken away at all. You might even consider reforms like providing all parents with “all the rights that our legal system guarantees.” Because it turns out, that’s the best way to protect children.

 2. AS LONG AS YOU’VE GOT $31 MILLION FOR CHILD CARE…

Marie Cohen has a different complaint. She thinks this is the wrong way to spend $31 million:

The $31 million budget proposal would address the issue [of foster parents finding child care for their foster children] by setting aside money for six-month emergency child care vouchers for foster parents caring for children ages 0 to 3 … Navigators would help foster parents negotiate the state’s byzantine subsidized child care system and help them avoid childcare gaps.

 Ridiculous! says Cohen. Instead, spend the money paying foster parents to stay home with the children.

You don’t suppose, if we all think really hard, we can come up with a third option for spending that $31 million in child care funds – such as helping birth parents find child care? You know, for those cases where the charge that led to removal of the children was “lack of supervision.”  Or the cases in which parents stayed home with the kids, lost their jobs, got evicted and lost their children for lack of housing? Or the cases in which all the stress of finding child care and housing and food and medical care and on and on and on led parents to lash out at their children?

And if you’re wondering if such an obvious alternative could be sufficiently “evidence-based,” consider this study of the amazing transformative power of something even simpler: cash. [UPDATE: And this study, too.]

Please, Captain Obvious, come back soon.

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."