News and commentary round-up, week ending Oct. 1, 2019

Having been away for most of September, I’m sure I missed a lot, but here are a few excellent recent stories – and one outstanding law review article.

● How many times are children taken from their parents each year? Officially, about 269,000. In reality it’s probably more than half a million.  That’s one of the important findings in a law review article by Prof. Josh Gupta-Kagan of the University of South Carolina School of Law, called America’s Hidden Foster Care System.  

By its very nature it’s hard to measure, but Prof. Gupta-Kagan has pulled together the available data and credibly estimates that the “hidden” system is about as big as the one we all know. In the hidden system children have even less protection from needless removal than in the system we know.  And the vastly overhyped Family First Act, which is supposed to prevent needless foster care, actually may make this problem worse.

Some of these concerns are not new.  I first wrote about what I called the foster care Twilight Zone in 2009.  And I discussed the problems in detail in this column for Youth Today in 2016.  But Prof. Gupta-Kagan has done an outstanding job of explaining the issue, adding new information about its scope, and recommending solutions.

● What happens when a profession not known for humility is granted enormous power by another profession steeped in secrecy with no accountability?  As the Houston Chronicle and NBC News reveal in their joint investigation, pretty much what you’d expect.  And, as noted in this previous post, child abuse pediatricians, whose failures are exposed in the story, are grasping for even more power – and demanding that their colleagues do less thinking.

● The previous round-up includes a link to a story by Delia Goncalves of WUSA-TV in Washington D.C. about how D.C. public schools sometimes call the child protective services agency to pick up children when parents are late to get them after school.  On Sept. 2, the station  broadcast a follow-up story, including NCCPR’s perspective.

● On the Rethinking Foster Care blog, Vivek Sankaran argues that the almost universally-invoked standard “best interests of the child” is profoundly dangerous because it is so subjective.  He writes: “…[c]hild welfare cases are really about who gets to decide what they think is best for a child. Before a parent is found to be unfit, they get to decide. While a child is in foster care, a court or a child welfare agency might get to decide. If a child has achieved permanency with an adoptive parent, or a guardian, they get to figure this out.”

And there are several important stories from New York:

● Whenever you think the child welfare system can’t get any uglier, someone turns over another rock and a whole new batch of ugly turns up.  Writing in The New York Times, Eli Hager of The Marshall Project exposes a law in New York State that allows child protective services agencies to take away the children of unwed fathers, even when there is not even an accusation that those fathers hurt their children.  The children can be taken away permanently if they are taken from their mothers, and the fathers don’t pay “child support” – or, as it should properly be called, ransom -- to the foster care agency holding the child. (And, even if the fathers could afford this, and even if it were a good idea, there isn’t even a mechanism to make the payments.) Eleven other states have similar laws.

● City and State New York has a story about a bill that would enact modest reforms to New York’s central registry of alleged child abusers, and slightly raise the standard caseworkers must use before checking off the box on the form that can wrongly list someone on that registry.

● WNYC Public Radio has a story about bills before the New York City Council that attempt to reduce needless removal and racial bias in the City child welfare system.

● And the Chronicle of Social Change follows one case that illustrates the value of New York City’s system of high-quality defense counsel for families.

Child welfare, foster care and civil liberties: When CPS resorts to blackmail

Reporters in North Carolina exposed the practice of child welfare agencies blackmailing families into giving up all their rights and letting them take away children with no court review at all. 

The only thing unusual about this is that, in North Carolina, it’s illegal. Elsewhere it’s standard operating procedure.

What Associated Press reporters found in
one small county in North Carolina actually
is common all over the United states

I have often written about the lack of due process in proceedings involving child protective services.  CPS agencies can and often do take away children entirely on their own authority. Parents then have to go to court days later to try to get their children back.

At that point, while the CPS agency has had days to make its case, an impoverished parent – and it’s almost always an impoverished parent – if she has a lawyer at all probably met her overwhelmed public defender for the first time five minutes before the hearing.

The standard of proof is not beyond a reasonable doubt as in a criminal proceeding, or even the middle standard, “clear and convincing.” Instead, CPS need merely persuade the judge that it is slightly more likely than not that the child needs to remain in foster care – the same standard used to determine which insurance company pays for a fender-bender.

The judge usually is easy to convince. That’s because the judge knows that he can hold hundreds of children in foster care needlessly and while this will do enormous harm to the children, the judge is safe. Return one child to a home and have something go wrong and the judge’s career could be over.

Resorting to blackmail

But in many cases across the country, even this doesn’t stack the deck enough to suit CPS agencies.  So they’ve resorted to something else: blackmail, typically using a parent’s own extended family as bait.

They don’t call it that, of course. Usually it goes by a term such as “safety plan” or “parental child safety placement” or “custody and visitation agreements.”

Here’s how it works: The child protective services worker says to a parent: Sign this document allowing us to place the child with an extended family member or we’ll take the child on the spot and place the child with total strangers. (If that’s not enough, they might ratchet up the threat, saying they will proceed immediately to termination of parental rights.)

CPS then argues, with a straight face, that the placement was voluntary – the family chose to give up any rights they may have to a lawyer and court review.  In fact, these placements are about as voluntary as a mugger sticking a gun in your face, saying “give me your money” and then telling the judge “I didn’t mug the guy, he gave me the money.”

What the AP reporters found

All of this brings me to what two enterprising Associated Press reporters, Mitch Weiss and Holbrook Mohr found in Cherokee County, N.C.  But let them tell you:

When Brian Hogan got a call that his wife had suffered a massive heart attack, he knew he had to get to the hospital fast. So Hogan asked his neighbor to take care of his 10-year-old daughter, then headed 60 miles east to the intensive care unit in Asheville, North Carolina.

What happened next would eventually expose a practice by a child welfare agency that illegally removed potentially hundreds of children from their homes in this poverty-stricken mountain community …

Hogan said the Cherokee County Department of Social Services threatened to throw him in jail, place his child in foster care or give his daughter to another family for adoption if he didn’t sign a “custody and visitation agreement,” known as a CVA.

“They gave me no choice,” said Hogan, 38, who told AP that child-welfare workers wanted to remove his daughter because they believed he placed the girl in an “unclean” home while he was caring for his hospitalized wife.

AP found that the county “did the same thing with dozens, possibly hundreds, of other parents…”

The extent of the blackmail

But that’s just the tip of a very large iceberg.

In North Carolina, individual counties run child welfare with supervision by the state. To its great credit, the state Department of Health and Human Services says what Cherokee County did was illegal and ordered counties not to do it.  A judge also ruled the practice illegal.  And, in a follow-up story, AP reports that the state is going to take over the entire Cherokee County child welfare system.

But it’s a different story in much of the rest of the country.  One reason we don’t know how many blackmail placements exist is because states often don’t report them to the federal government as entries into foster care – even though federal regulations make clear they should be counted.

But by one estimate, on any given day, there probably are 300,000 children trapped in a foster-care Twilight Zone because of blackmail placements across the country – that’s over and above the more than 400,000 children states admit to holding in foster care.

In Texas nearly two-thirds of entries into foster care probably are blackmail placements.

In Illinois, blackmail placements have been the subject of repeated lawsuits that lead to settlements. Then the child welfare agency violates the settlements.

So to really understand the harm done to children by blackmail placements, take the pain inflicted on Brian Hogan’s daughter and multiply it – hundreds of thousands of times.