Update: Child abuse and the Penn State horrors: Casey strikes out

            Taking knee-jerk idiocy to the ultimate level, Pennsylvania Senator Bob Casey (D-Pa.) has introduced legislation to coerce every state into passing a law to require anyone and everyone to report any and every suspicion of child maltreatment to child protective services or the police.  It’s co-sponsored by Sen. Barbara Boxer (D-Ca.).

            The federal government can’t force the states to do this directly.  But Casey’s bill would withhold federal aid under the Child Abuse Prevention and Treatment Act from states that refuse.

            For all of the reasons described in the post below, the best title for this bill would be the Helping Child Abusers Get Away With It Act of 2011.

Child abuse in America: Learning the wrong lessons from the Penn State scandal

The fact that it’s so predictable makes it no less depressing: In the wake of a scandal over the alleged rape of children by a former Penn State football coach, there are calls to require even more people to report their slightest suspicions of child abuse to child protective services agencies and/or law enforcement.

The near-certain result: More people will get away with child abuse.  More children will suffer at the hands of child abusers because CPS caseworkers will be even more overwhelmed with false allegations and have even less time to find the children in real danger.  And more children will suffer at the hands of CPS agencies – because inflicting a child abuse investigation on a child who was never otherwise harmed is an act of child abuse in and of itself.  That is particularly true in cases of physical and sexual abuse.

THE PENN STATE CASES

For starters, consider the Penn State cases themselves.  If he is guilty of the charges against him, former coach Jerry Sandusky didn’t get away with it until now because of the lack of a mandatory reporting law; he got away with it because people already required to report the abuse failed to do so.

The Penn State case is unusual in another way as well: In this case, Mike McQueary, then a graduate assistant in the football program, says he actually caught Sandusky in the act of raping a ten-year-old boy.  Very few cases are so clear and unambiguous.  As Buzz Bissinger, author of Friday Night Lights persuasively argues at The Daily Beast, what stopped McQueary from immediately calling 911 had nothing to do with child abuse reporting laws.  Rather, Bissenger writes:

What happened, or more accurately did not happen, goes to the core of evil that major college sports programs in this country have become, equivalent to Mafia families in which the code of omertà rules and coaches and staff always close ranks around their own, even if it means letting someone who was first accused of inappropriate sexual conduct in 1998 continue to roam. … Except that the even the Mafia has higher moral standards.

To leap from this extreme – and extremely unambiguous case – to requiring everybody who works in a school or college, from the janitor to the secretaries to the school bus drivers – to phone in their slightest suspicion about everything or risk jail time is to court disaster.

Remember, we’re talking about the slightest suspicion of everything that now comes under the heading of “child abuse” and “child neglect” – including all those breathtakingly-broad statutes that define poverty itself as neglect.

OVERLOADING CPS AGENCIES

The most obvious problem with all this, of course,  is that it will further overload child welfare agencies with CYA referrals from mandated reporters terrified of what will happen to them if they actually exercise some common sense.  Even now, more than 75 percent of all reports alleging "child abuse" are false.  That is, they fail to meet the minimal standard for declaring the report "substantiated."  No hearing is required to "substantiate" a case; it's simply the guess of a caseworker checking a box on a form.  Turning everyone into a mandatory reporter will make the proportion of false allegations even bigger.

Even David Finkelhor, of the Crimes Against Children Research Center at the University of New Hampshire, and someone with impeccable “child saver” credentials, told the Associated Press:

Maybe it's better that people use discretion ... If everybody obeyed the letter of the law and reported a suspicion of abuse, the agencies would be completely overwhelmed with reports.

Finkelhor is not alone.  As early as the 1980s, some former proponents of massive mandatory reporting began to have second thoughts.  In a 1983 article, Dr. Eli Newberger of Children’s Hospital in Boston, again, someone with gold-plated “child saver” credentials, wrote that

had professionals, like me, known then what we know now, we would never have urged on Congress, federal officials and state broadened concepts of child abuse as the basis for reporting legislation.

Newberger’s article was called “The Helping Hand Strikes Again.”

Of course, not everyone thinks this is all that much of a problem.  A former prosecutor named Victor Veith, best known for coming up with a master plan to end all child abuse – in 120 years, thereby assuring that no one who implements it will be around to see if it actually worked - told AP:

I'd be in favor of as broad a mandated reporting law as possible.  But it needs to be accompanied by required training.

The broadest possible law, of course, would make everyone a mandated reporter.  Eighteen states actually do that.  I can’t wait to find out Veith’s master plan for training more than 200 million Americans in how to detect child abuse.

Actually, “training” could make things even worse if it’s done by the same organizations that put out broad, vague lists of symptoms we’re all supposed to watch out for to determine if a child might be abused, lists which tell us to suspect abuse if a child is too shy or too aggressive or acts too much like an adult or too much like a child or has nightmares or doesn’t have warm clothing in winter and on and on and on.  Here's a classic example.

But system overload is only one of the harms that broadening reporting laws will cause.

THE TRAUMA TO CHILDREN

Almost forgotten is the fact that a child abuse investigation is not a benign act.  Having a stranger come to the door – or your school – pull you aside and ask questions about the most intimate aspects of your life can be an enormously traumatic experience for a child; and the younger the child the greater the trauma.  It can leave lifelong emotional scars.

Three of the nation’s leading scholars of child welfare in the 20^th Century – scholars who opposed mandatory reporting, by the way - the late Anna Freud, Joseph Goldstein and Albert J. Solnit wrote that children

react even to temporary infringement of parental autonomy with anxiety, diminishing trust, loosening of emotional ties, or an increasing tendency to be out of control.  The younger the child and the greater his own helplessness and dependence, the stronger is his need to experience his parents as his lawgivers --  safe, reliable, all-powerful and independent . When family integrity is broken or weakened by state intrusion [the child's] needs are thwarted and his belief that his parents are omniscient and all-powerful is shaken prematurely.

It’s not just young children who are harmed.  For a particularly-insightful take on the dilemma of mandatory reporting check out this essay from a pediatrician that ran in The Washington Post.

STRIPSEARCHES – AND WORSE

Even worse, when the allegation is physical abuse – and, sometimes, even when it’s not - the investigation often is accompanied by a stripsearch by a caseworker or a doctor looking for bruises.  If anyone else did that it would be sexual abuse.  And if the allegation is sexual abuse, the medical exam can be a lot more traumatic.

Indeed, try to imagine the terror for a young child, suddenly taken from family by strangers, often including police.  She goes to a strange hospital, where doctors and nurses she’s never met before perform the most intimate possible examination.

It’s already far too easy to inflict this kind of harm on a child, as can be seen in this case, part of a class-action suit in New York City. (NCCPR’s Vice President represented the family).

Surely we should not make it even more likely that this kind of abuse will be inflicted on children by setting the process in motion based on nothing more than a school janitor’s hunch.

All this is before we even reach the harm of panicky workers using these kinds of  flimsy allegations to throw children needlessly into foster care – where the rate of actual abuse is far higher than in the general population.  (Though the majority of foster parents try to do the best they can for the children in their care, as it happens, Jerry Sandusky was a foster parent, and his charity ran a group home.)

ADULT SELF-INDULGENCE

But as with so much else that supposedly involves “child protection” the call for more reporting laws really is about adult self-indulgence.  This can be seen in what Jim Hmurovich told the AP.  Hmurovich now runs Prevent Child Abuse America – that’s the group that publishes the Spider Man comic book that effectively encourages children to turn in their parents if they get a spanking.

Before that he ran the child welfare system in Indiana, where he turned it into a paragon of mediocrity, from which it still hasn’t recovered.  Indiana is best known for horrifying cases of deaths of children “known to the system” and for tearing apart families at a rate more than 50 percent above the national average.

When people in child welfare are asked to cite states that do a particularly good job of keeping children safe, I’ve never heard anyone outside Indiana cite Indiana.  (And it’s hard to believe those in Indiana are doing it with straight faces.)

But Indiana is one of those states where everyone is a mandated reporter, and  Jim Hmurovich thinks that’s just dandy.  According to AP, Hmurovich “supports the state's broad reporting requirement, even though he said its impact is hard to quantify.”

“Hard to quantify” means there is not a shred of evidence that making everyone a mandated reporter makes children safer, in Indiana or anywhere else.  But that doesn’t seem to be Hmurovich’s main concern.

"It gave everyone some comfort that they were doing the right thing legally if they report suspicions of abuse," he told the AP. "If children are so important to us, shouldn't it be all our responsibility to make sure they're safe?"

In other words, Jim Hmurovich has just given new meaning to one of the less noble catchphrases of the 1960s: "If it feels good, do it." 

Foster care in America: Another excuse for high rates-of-removal bites the dust

I hear it all the time when I point out to reporters in certain states that their states are extreme outliers when it comes to tearing apart families – states like Nebraska, Iowa, Rhode Island and South Dakota, among others.

The reporters ask the flack for the child welfare agency and she or he almost always comes up with the same excuse: “We’re different,” the flack claims, “unlike other states, we count children placed in foster care through our juvenile justice system, not just our child welfare system.”

I then ask the reporter: What percentage of placements do they claim are juvenile justice placements?  It turns out that the percentage is so small that, even if you deducted those placements the extreme outliers remain just that - extreme outliers.

But there is another problem with this argument: If so many states are saying they’re unusual – if not unique – because they count these additional placements, it can’t really be all that unusual.

The federal government doesn’t actually count how many states include juvenile justice cases.  But one state legislature’s audit staff has.

Staff for the Performance Audit Committee of the Nebraska Legislature got tired of hearing this excuse.  So they checked with Casey Family Programs which actually asked the states.  The findings are in this report on pages 31 and 32.  It turns out that the majority of the states, 31 in all, include juvenile justice placements in the counts of entries into care and the snapshot number of children in foster care that they send to the federal government.

So the assorted public officials, agency leaders and flacks who have been blithely using the juvenile justice placement excuse all this time either are grossly ill-informed, or they are lying. 

On our blog at Youth Today: Is the Children's Defense Fund leaving homeless children behind?

One of the complaints liberals, like me, have about the far right is that they tend to believe that protectable life begins at conception and ends at birth.

But some recent behavior by the liberals at the Children’s Defense Fund raises questions about whether there may be a similar problem with some on the left.  Does CDF believe children should be defended only from the day they enter foster care until the day they leave?

Details are on our Blog at the trade journal Youth Today.

Foster care in South Dakota: When all else fails, try xenophobia

Apparently those NPR stories about the damage done to Native American families by child protective services in South Dakota have made that state’s governor, Dennis Daugaard, very nervous.

He refused to actually be interviewed by reporter Laura Sullivan and producer Amy Walters.  Instead, he issued a five-page rebuttal to the series – before it ever aired.

What is so fascinating about the rebuttal is that it leaves all of the most important points in the series unrebutted.  There is no response to the fact that South Dakota tears apart families at a rate vastly above the national average.  There is no response to the fact that Native American children are trapped in South Dakota foster care at a rate nearly four times their rate in the general population.  In fact there is no response to anything in the NPR stories about the actual harm done to Native American children.

Instead the governor obsesses over part two of the series which was all about – the governor.  That was the part which discussed how, back when he held the part-time job of lieutenant governor, his full-time job was running the Children’s Home Society of South Dakota – and how, during this time, CHS did remarkably well when it came to obtaining state contracts.

Melanie Sloan, executive director of Citizens for Responsibility and Ethics, told NPR that it’s “a massive conflict-of-interest.”  The governor’s defense is that everybody in South Dakota knew all about it – it’s a small state – and anyway, he was only doing it for the kids. 

It’s certainly true that Daugaard made no secret of his connection to CHS – as NPR reported, he bragged about it in his campaign for governor. He may well have believed, sincerely, that what CHS was doing was best for the children. (NPR never suggests otherwise.)   Most people who run great big child welfare agencies that hold kids in foster care believe that – and only rarely does the mass of objective evidence to the contrary change their minds.

Whether CHS got the contract to warehouse kids or someone else did doesn’t make a lot of difference to me.  The issue is that South Dakota not only tears apart families at one of the highest rates in the nation, it also dumps the kids into the worst form of “care” – group homes and institutions – at one of the highest rates in the nation. But the governor’s past employment raises another concern: Anyone that emotionally invested in warehousing children is going to find it hard to face up to the reality of how much it harms children.

A DIFFERENT KIND OF CONFLICT

The role of CHS raises questions about a different kind of potential conflict of interest – the kind that comes with what is known in the corporate world as “vertical integration.”  During Daugaard’s time as Lieutenant Governor, CHS grew so huge that a good case can be made that, as a practical matter, CHS runs child welfare in South Dakota.

● CHS does the examinations of children to determine if they were abused or neglected.

● CHS trains the state caseworkers who decide whether to remove a child from the home.

● CHS screens the potential foster parents, both strangers and relatives, who might take in those children.

● CHS trains the foster parents.

● CHS runs lots of group homes and institutions.

So if CHS decides a child is abused, it increases the number of potential candidates for CHS group homes and institutions.  If CHS trains the caseworkers, will those caseworkers be trained in a way that makes them more likely to take away the child – and send that child to a CHS institution?  If CHS screens family foster homes that are, in effect, “competitors” to CHS group homes and institutions, will they set standards many of those family foster homes can’t meet?

I’m not suggesting that any of this would be some kind of conscious conspiracy.  But rationalization is powerful.  Any organization whose livelihood is dependent on substitute care is going to persuade itself that lots and lots of children need substitute care.

It’s no different from doctors who are more likely to perform unnecessary surgery when paid on a fee-for-service basis or hospitals which extend patient stays when they are paid by the day.  In both cases, the medical personnel almost certainly have persuaded themselves that the patients are really, really sick.

The governor’s “prebuttal” as it was aptly described by one reporter, addresses none of this.  And, as I noted at the outset, it says nothing about the entire issue of the destruction of Native American families.

“SHOW THEM THE WALL”

The only support the Governor can come up with for the claim of bias is a statement from his own press secretary, Joe Kafka (I’m not making that name up) and an e-mail from reporter Sullivan requesting an interview. 

In fact, rather than showing bias, the e-mail is an example of exactly what good, careful reporters are supposed to do.

When I was a reporter in the late 1980s, the newspaper where I worked brought in a superb investigative reporter as a guest speaker.  In discussing the need for fairness in investigative reporting, this reporter urged us, as we reached the conclusion of any project, to go to anyone who may not come out looking good and “show them the wall.”  By that he meant, lay out every specific point that raises questions about the subject and give that subject a full opportunity to respond.

That is exactly what Sullivan does in her e-mail.  She spells out exactly what she and producer Walters have found so far and asks the Governor to please tell his side of the story.  This is precisely the opposite of the kind of “ambush interview” we’ve all seen on some television newsmagazine programs, the kind that gives investigative reporting a bad name.

Governor Daugaard should have welcomed the e-mail and told his side of the story. Unless of course, he had no real answer.

Apparently he doesn’t.  Because the governor’s other tactic was to change the subject.

THE PENULTIMATE REFUGE OF A SCOUNDREL?

If, as Samuel Johnson said, false patriotism is the last refuge of scoundrel, the next-to-last is xenophobia.

And so, in the very first paragraph of his prebuttal, the governor notes that Sullivan “a native of San Francisco, works for Washington DC-based NPR.”

Horrors!  Washington and San Francisco!  Obviously, anyone with a background like that simply has it in for South Dakota.  (I imagine the only thing worse would be to work in the Washington area and be from New York City – like me.)

Similarly, after two Members of Congress said they were launching an investigation, an aide to the governor complained that they are from “other states” and didn’t speak to the South Dakota Department of Social Services first.  The real question is why the South Dakota Congressional delegation so far has refused to speak up for their Native American constituents – and all the children harmed by the rampant misuse and overuse of foster care in the state.

But it seems the governor underestimated his constituents, or at least the state’s journalists – because they don’t seem to be buying it.

See, in particular the work of Denise Ross, a reporter for the Daily Republic in Mitchell, S.D.  (She’s the one who came up with “prebuttal.”)  In a post on the newspaper’s Blog she speaks highly of the governor, and expresses her conviction that he really does care about the kids.  But she also writes:

The much bigger, longer-standing issue is whether South Dakota complies with the federal Indian Child Welfare Act and other laws, for example when social workers enter Indian reservations with which the state has no agreement and remove tribal children from their homes. The Crow Creek tribe threatened to prosecute for kidnapping in one case, NPR reported, and the children were promptly returned to their relatives. …

Here’s my hope, especially given my enduring belief in Daugaard’s character. I hope that he acknowledges that the state contracts for CHS look bad, but I hope he then vows as governor to look into South Dakota’s foster care system, our compliance with ICWA and our rate of taking children from their home – about 3 times that of other states.  I hope he works as hard at that as he worked as a young lawmaker to bring some reform to juvenile corrections. This time, he has a lot more power to affect change.

I don’t know where Ms. Ross was born and raised.  But right now, Gov. Daugaard, she’s sending you a message straight from Mitchell, South Dakota.


CORRECTION: This post has been corrected to fix an error in the name of the newspaper in Mitchell, S.D.  I can only imagine what Joe Kafka will make of that.

UPDATE: Foster care in South Dakota: Members of Congress investigate NPR’s revelations

            Rep Ed Markey (D-Mass.) and Rep. Dan Boren (D-Okla.), the ranking minority members of the House of Representatives committee and subcommittee with jurisdiction over Indian affairs, have launched an investigation of the revelations in NPR’s brilliant three-part series about what child protective services in the State of South Dakota is doing to Native American families.

            That’s another good step in the right direction, coming as it does after the announcement from the South Dakota ACLU.

Foster care in South Dakota: NPR stories get the ACLU’s attention

            This will give you some idea of the power of NPR’s three-part series on the destruction of Native American families by child protective services in South Dakota: The stories were a 2 x 4 so big they even got the attention of the state chapter of the American Civil Liberties Union.

            That has the potential to jump-start efforts to stop the practices exposed by NPR.  Up to now, the small and underfunded Lakota People’s Law Project has stood virtually alone in fighting for the rights of South Dakota’s Native Americans under the Indian Child Welfare Act.  (Their director has posted a blog to answer the many people who have asked how they can help as individuals.)

            One would think ACLU involvement would be a no-brainier: A state tears apart families at one of the highest rates in the nation, repeatedly confuses family poverty with neglect and tramples on a federal law designed to protect Native Americans.

            But as I’ve noted often before on this Blog, too many of my fellow liberals forget everything they claim to believe about civil liberties as soon as someone whispers the words “child abuse” in their ears. That’s a major reason why the traditional due process protections Americans take for granted in other fields of law are almost non-existent in child welfare.  (For details see our Due Process Agenda).

            There is no clearer example of this myopia than the behavior of the ACLU, nationally and in most states.  Typically, when it comes to the rights of children to live with their own families, the ACLU is AWOL.  NCCPR’s founder, Elizabeth Vorenberg, resigned from the ACLU’s National Board over its failure to defend the civil liberties of families facing the unchecked power of child protective services.

            The child welfare field is filled with issues that would seem to be obvious choices for ACLU litigation: Secret trials, lack of adequate (or sometimes any) defense counsel, searches and seizures without warrants, and on and on. 

Refusing to defend children's Fourth Amendment rights

            But consider what happened this year when the first major child welfare case in 21 years, Camreta v. Greene, reached the U.S. Supreme Court.  As we explain on our special website about the case:

The child was only nine years old when she was called out of her classroom and forced to endure a two-hour interrogation by a male caseworker for the Oregon Department of Human Services because DHS had received a false allegation of sexual abuse.  Sitting silently in the room during the entire interrogation was another man - an armed deputy sheriff. 

            The child repeatedly denied any abuse, only to be browbeaten by the caseworker, who kept insisting she was giving the wrong answers while questioning the little girl about the most intimate details of her life. …  The experience so traumatized the child that she became physically ill.

           The child sued and the Ninth U.S. Circuit Court of Appeals agreed that her Fourth Amendment right to be free from unreasonable search and seizure had been violated.

            NCCPR’s Vice President, Carolyn Kubitschek represented the child. The Family Defense Center co-ordinated an extraordinary effort leading to the filing of 18 amicus briefs by 70 individuals and organizations in support of this child’s Fourth Amendment rights.

           Several of the groups, including the Legal Aid Society Juvenile Rights Practice,  Lawyers for Children, and the Children’s Law Clinic at Penn State University specialize in representing children in cases involving alleged child maltreatment.  All of them understood how destructive it is to a child to deny that child her rights under the Fourth Amendment.

            But not the ACLU.  The ACLU remained silent.

            It is much the same at the state level.  Over and over, families have told me about how they sought help from the ACLU in their state and were turned away.  Sometimes it’s even worse.  

In Indiana, the state chapter of the ACLU actually sued to block modest reductions in pay for foster parents.  Even if one believes that foster parents somehow should be exempt from the sacrifices being made by everyone else in a recession, (which can only lead to more cuts elsewhere, such as help for birth parents) how exactly is that a civil liberties issue? 

In Michigan, the ACLU did go to bat for the upper-middle-class white child taken from his parents after his father accidentally bought him Mike’s Hard Lemonade at a baseball game, and the redress they are seeking will help all families.  But they did nothing to help Maryanne Godboldo’s child, who is poor and Black, and was taken from her mother when she exercised her legal right to stop giving the child psychiatric medication with severe side-effects.   Godboldo and her grassroots allies had to win that case without the ACLU’s help.

Certainly, there are exceptions.  The ACLU of Pennsylvania repeatedly has championed the rights of children against the power of CPS agencies (their legal director is a member of NCCPR’s Board of Director).  And one of the class-action lawsuits that has helped dramatically improve child welfare in Illinois was brought by the Illinois ACLU.

Now, the South Dakota ACLU is stepping in to help champion the right of Native American children to their own families.  But the Indian Child Welfare Act is a federal law, and, as NPR notes, it is being violated in 32 states.  Where is the National ACLU?  Doing what it usually does: Exercising its very own right to remain silent.

Pride of the Yankees

Part of the explanation lies in an unfortunate decision made by the ACLU when it set up a Children’s Rights Project in 1979.  They hired as its director the person who was already running a similar project for the New York Civil Liberties Union – Marcia Lowry.

One of Marcia’s earliest suits in New York was an attempt to bolster the rights of foster parents to prevent children from being transferred to other homes – including the homes they came from in the first place.   Real champions of civil liberties, like Louise Gans, who then was with Community Action for Legal Services, were furious.  As Nina Bernstein writes in her brilliant book, The Lost Children of Wilder: The Epic Struggle to Change Foster Care:

For Gans and many of her colleagues, the true road to children’s rights lay in defending poor parents against the state’s abuses of power.  Gans believed that poor families were routinely misled and mistreated by foster care agencies – their children unnecessarily removed, their visits curtailed, and reunification wrongfully discouraged.  More passionately that most, she felt that legal reform efforts should concentrate on changing the state’s s treatment of biological parents.  Yet here, instead was CLU litigation that risked establishing some kind of constitutional right for foster parents – another weapon agencies could use against poor families …

Gans and other Legal Services people felt embattled.  Their clients had terrible problems, and their staff and resources were always inadequate to help. By their standards the CLU was rich.   That made it all the more galling that with a million lawsuits to choose from, Lowry should bring one that in their view threatened to make things worse instead of better.

Or as Danny Greenberg, then Managing Attorney for MFY Legal Services put it in a confrontation with Ira Glasser, then executive director of the NYCLU (and later executive director of the ACLU):

My God, Ira.  Think of the class issues in this.  You think of yourself as a Brooklyn Dodger fan, a supporter of the underdog.  Only a Yankee fan could bring a lawsuit like this.  The Yankees would love this lawsuit.

Today, of course, Marcia Lowry still is the pride of the Yankees.

She actually left the ACLU to create the group that so arrogantly calls itself “Children’s Rights” because even Ira Glasser’s liberalism was too much for her.  She told the Chronicle of Philanthropy that too much of what the ACLU did was tied to a “liberal agenda.”  Leaving the ACLU also may have made her more appealing to Carl Icahn, the corporate raider who once chaired her Board of Directors.

So no one should be surprised at CR’s response to NPR’s revelations about what’s being done to Native American families in South Dakota:

Silence.