The Los Angeles Times is getting child welfare wrong again – and that’s bad news for Los Angeles children

Garrett Therolf was among those speaking at a Los Angeles Times
"Ask a Reporter" event on January 20. Questions were screened in advance.

As usual it's because of Garrett Therolf. The former Times reporter and still their go-to guy for child welfare stories continues to soft-peddle racial bias.  Now he’s campaigning for the use of computerized racial profiling – a.k.a. predictive analytics.  He’s even effectively blaming readers for his own failings as a journalist. 

First of two parts Read part two here.

Remember Garrett Therolf?  He’s a former Los Angeles Times reporter and current Times contributor via his current job with the University of California, Berkeley Investigative Reporting Program.  While writing story after story attacking efforts to keep families together he was accused – by other journalists - of repeated misrepresentations and, on one occasion, accused of making up a quote. 

 ●LA Weekly noted how the Times quietly backed off claims in a Therolf story about child abuse deaths. 

● The respected online news site WitnessLA reported: 

[A]ccording to a number of sources and experts, many of Therolf’s supporting facts range from very fuzzy to downright inaccurate—and seem to be immune to correction … 

Much is at stake when the state’s largest newspaper starts using some high profile tragedies to push—without adequate factual basis and no visible thoughtful consideration—for a change in policy that would result in more kids snatched unnecessarily from non-abusive families into the trauma that is foster care. 

● The founder of the child welfare trade journal The Imprint, Daniel Heimpel was more blunt, blasting “The Times’ myopic, misleading and reckless reporting …” 

Therolf’s specialty is taking child abuse deaths, tragedies that are as rare as they are horrific, and doing two things: Covering them almost to the exclusion of everything else, leaving the impression that the only error the system makes is leaving children in dangerous homes, and drawing broad, sweeping conclusions from these tragedies.  That contributes to foster-care panics, sharp, sudden increases in children needlessly torn from their homes. 

That not only hurts the children needlessly removed, it also overloads the system, making the next tragedy that much more likely.  Of course this doesn't mean Therolf wants his reporting to do harm; I'm sure he wants his reporting to save lives.  But to do this reporting he must immerse himself in the details of some of the most horrific tragedies imaginable.  As he has acknowledged, that can take a personal toll.  And, as with other reporters who have done the same kinds of stories, it seems to have blinded Therolf to the real-world consequences of an approach that omits crucial context.

When Therolf’s reporting came under increasing criticism, the Times issued a response that boiled down to: If you challenge our coverage in any way you want children left in dangerous homes! (See also WitnessLA’s response to that here and here.) 

Garrett Therolf’s journalism certainly isn’t the only reason Los Angeles tears apart families at the second-highest rate among America’s largest cities and their surrounding counties, I think it plays an important part. 

Therolf has a particular problem with the idea that there is systemic racial bias in child welfare – boosting the most extreme white scholars who lead child welfare’s de facto “caucus of denial” while ignoring the credentials and demeaning the work of Black scholars.  As we noted in this earlier post about one such story, in Garrett Therolf’s world white people “marshal data.”  Black people just want to rely on anecdote and “folkways.” 

Hyping “predictive analytics” 

So it should be no surprise that Therolf is pushing that dangerous fad in child welfare predictive analytics, in which an algorithm dredges up data on families who were the subjects of child abuse reports and tells the family policing agency if the case is “high risk.”  Therolf regurgitates all the favorite talking points of Emily Putnam-Hornstein, America’s foremost evangelist for what is actually computerized racial profiling – and someone whose own extremism and penchant for deriding the work of Black people is documented here. 

Perhaps Therolf fears that people are finally taking seriously the existence of systemic racial bias in child welfare.  That would explain two odd events at the Times on January 20: A so-called “news analysis” story that pushes predictive analytics as the silver bullet for child welfare – the only idea greeted with approval in a story headlined “How to fix L.A. County DCFS” -- and an “Ask the Reporters” video presentation in which almost no one outside the Times itself got to ask anything of Therolf, his current reporting partner, Matt Hamilton, and Holly Mitchell, who chairs the Los Angeles County Board of Supervisors. 

Normally, there is a news peg for stuff like this – some big event in the news prompting a newspaper to offer this kind of additional “context.”  But the only thing new in Los Angeles child welfare is the departure of the head of the County’s family policing agency, the Department of Children and Family Services – a thoroughly routine event that happens on average roughly once every two or three years – and the emergence of a powerful new force for change, the Reimagine Child Safety Coalition.  They’ve issued a series of demands, directed at the Board of Supervisors, which would, at long last, bring a measure of racial justice to Los Angeles child welfare.  In this, they march alongside DCFS-Give Us Back Our Children, which has been active for well over a decade.  I am proud to work with both groups. 

In part two of this post, tomorrow, I’ll go paragraph-by-paragraph through the “news analysis” story, since it is a splendid example of Therolf in full spin mode.  But for now, let’s go to the videotape.  

During the carefully stage-managed event, almost all the questions came from Times columnist  Anita Chabria. Audience questions had to be submitted well in advance for screening.  One of those questioners asked: 

Are you concerned that reforms are driven by the worst failures of child protective services, and in focusing on children who died, officials and the public largely forget the trauma and harm experienced by a huge number of children removed from their homes and then removed from repeated subsequent placements? 

Hamilton replied: 

 I don’t think it’s an if/or proposition. You can focus on these complex cases that have a lot of very serious allegations but still also look at the broad number of cases that come in, I don’t think reform is being only driven by these type of cases. 

The problem with that is two-fold: First, for decades what passes for “reform” has been
driven by the horror story cases and almost nothing else – that’s why it’s failed. The one reform that tried to curb needless removal, a waiver to allow more flexible child welfare funding, was a prime subject of misleading attacks by Therolf. 

And second, while one can look at cases that illustrate needless removal, with only token exceptions the Los Angeles Times hasn’t actually done that, something discussed in more detail below. 

The most misleading statistic in child welfare 

Then it was Therolf’s turn.  The first thing he did was remind us of the horror stories – in a common, but misleading way. In fact, he used what may be the most misleading statistic in child welfare.  He said that four to eight children die of abuse in America every day and half are in some way known-to-the-system. 

That is not wrong, but it lacks crucial context.  First, “known” can mean anything from one call to a hotline years before, to a casefile with more “red flags” than a Soviet May Day parade; which are, of course, the ones on which Therolf focuses. 

But more important, the phrasing – half of children who die were known-to-the-system leaves a visceral impression of something very different: That half of children known-to-the-system die  -- and therefore agencies must be bending over backwards to leave children in dangerous homes. 

To really understand the meaning of half of child abuse deaths involve children known-to-the system, you have to understand how many children are “known to the system.”  Any story that uses the statistic should also include the context. (Shall we take bets on whether someone at the L.A. Times or some other journalist-on-the-defensive will misrepresent the above and say: “Oh, you don’t want us to report how many deaths were known to the system”?)  So here’s the context: 

Nationwide, more than seven million children become “known to the system” every year.  Using Therolf’s high-end estimate, 1,460 of them die.  That means every year 99.998% of children “known to the system” do not die of child abuse and neglect. 

It looks a bit like this:

 

As soon as you point that out, however, it plays into the hands of those, like Therolf and others at the Times, who say this means we must be minimizing the problem and don’t really care if children are hurt. 

And sure enough, that’s what Therolf did, declaring: 

Sometimes reporters are criticized for covering child abuse fatalities: Oh, you’re covering an unusual event.  And while these events are rare, they are happening every day with regularity, and it’s a place where our democracy has an opportunity to make an improvement in an area everybody agrees has not fulfilled its promise. 

No one says journalists shouldn’t cover child abuse fatalities – it’s just Therolf’s way of evading responsibility for the failings in his journalism.  Rather, we’ve said Therolf, and others, should do it better – so their coverage might bring us closer to the only acceptable goal for child abuse fatalities: zero, rather than simply repeating the very cycle of failure Therolf acknowledges. And we’ve said they should cover all the other system failings, not instead of the horror stories, but in addition. 

Therolf’s critics are simply doing his job for him.  We’re explaining the problem – and why foster-care panics make it worse -- and suggesting real solutions.  Child abuse deaths are needles in a haystack, and the foster-care panic typically engendered by journalism, Therolf-style, only makes the haystack bigger. 

And then, incredibly, Therolf claims he already covers wrongful removal – and suggests that if readers haven’t noticed it must be their fault.  He gives a lovely little speech that bears no resemblance to his actual reporting. It begins like this: 

On the other end of the spectrum, we also know that far too many families are caught up in child welfare systems that don’t belong there.  

He goes on to label as “horrifying” the fact that “half of all Black children are investigated over the course of their childhood as possible victims of abuse and neglect.” (By the way, in Los Angeles it’s probably 58%.) 

He talks about the documentary King Richard, in which, he says, Venus and Serena Williams describe the trauma of a false allegation of child abuse against their father, and how that was “one of the most searing experiences of their lives.”   And he adds: “It happens with extraordinary regularity to families that have done nothing at all to warrant that type of intervention.” 

But then he has the gall to suggest, without quite saying it, that such stories are prominent in the Times and a regular part of his reporting. 

We’ve certainly covered it at the Los Angeles Times at various periods of my career. …  I did a story about a Black mother named Monique Baker who struggled for over a year to regain her children on the basis of allegations that proved to be false.  We have done those stories. 

Yeah, once.  Oh, wait, that’s unfair.  There was also that great story he did covering the issue when it came up at a Board of Supervisors meeting – in 2002.  Odds are, over the course of more than two decades, there have been one or two more. 

But, on those extremely rare occasions when the cries of children wrongfully removed make
it into the Los Angeles Times, those cries are drowned out by the tsunami of coverage of the horror stories – coverage that almost always implicitly, and sometimes explicitly, blames efforts to keep families together.  Times subscribers can easily confirm this with a check of the newspaper’s online archive. 

Or consider the promotion for the online event itself.  The headline reads “Children keep dying. Why can’t L.A. County protect them?” If Therolf’s words on the video were reflected in his work at the Times the headline would have been more like “Families torn apart but children still die. Why can’t L.A. County stop the tragedies?”  The promotional material includes a link to that one story Therolf cited about wrongful removal – and at least 27 stories about the deaths of children “known to the system.” 

Flunking the Bagdikian test 

Therolf’s claims in the video are, in fact, the classic approach news organizations take when criticized for ignoring perspectives they don’t like.  Former Washington Post editor Ben Bagdikian explained it decades ago in his seminal work of media criticism The Media Monopoly.   

One of Bagdikian's important observations is how newspaper editors who have strong feelings about an issue deal with the side of that story they don't like: 

They cover it. Prominently. Once. 

That's just enough for the editors to say to critics "Oh, we covered that. We even put it on the front page" – when they know full well that anything covered only once has almost no impact. It's what's repeated over and over again that leaves an impression. 

Columbia Journalism Review made much the same point last week, in a column about coverage of the humanitarian crisis in Afghanistan.  What makes the difference, CJR argued is 

[W]hich stories are not just worthy of an article, but of real focus and consistent amplification. [Emphasis in original.] 

Even that one prominent story Therolf points to with pride stumbled when dealing with the issue of racial bias.  In fact, that part of the story made Therolf so uncomfortable that he accompanied the story with a sidebar  – the story mentioned at the beginning of this post, in which he stacks the deck to support the claim that any disparity in entries into foster care is due to “past” discrimination making Black people bad parents. 

And then comes the coup de grace: Therolf says to readers, in effect: If you haven’t noticed the side of the story I almost never cover, it must be your fault!  Or as Therolf puts it: 

Unfortunately, [stories about wrongful removal] don’t stick in folks’ memory quite as much as the fatalities do, but they are there for the folks who are interested in looking at them. 

Good luck finding them. 

Read part two: Garrett Therolf and The Magic Algorithm!

NCCPR news and commentary round-up, week ending January 19, 2022

● Writing in The Imprint, Vivek Sankaran looks at the implications of a Pennsylvania Supreme Court decision that never should have been necessary. It should have been obvious all along that, when the family police knock at the door, families have Fourth Amendment rights.  He also shows that, apparently, there are some pretty awful judges in his own state of Michigan. 

● It also should be obvious that caseworkers do not have a constitutional right to falsify documents in the course of their investigations.  But there’s been still another right-to-lie case in the federal courts.  I have a blog post on both cases which, together, reveal that “child welfare” is a field so arrogant it can assert the right to violate everything from the Fourth Amendment to the Ninth Commandment. 

● A great family defender, Kathleen Creamer of Community Legal Services of Philadelphia, discusses that Pennsylvania Supreme Court decision, another Pennsylvania case, and other crucial child welfare issues, including the harm done by the so-called Adoption and Safe Families Act (ASFA) on The Imprint podcast. 

● Another great family defender, Jey Rajaraman will be joining the new national effort to transform child welfare led by the former head of the federal Children’s Bureau, Jerry Milner and his special assistant there David Kelly. 

● No state needs such a transformation more than Montana.  NCCPR has a column in the Daily Montanan about an audit by the State Legislature which proves what we’ve said all along: Montana is the child removal capital of America. 

● Meanwhile, in Florida, there’s been a miracle!  Apparently, in Pinellas County Florida child abuse suddenly plummeted by 50%.  After all, what else could possibly explain the fact that all of a sudden Sheriff Bob Gualtieri reduced child removals by that amount.  Well, I do have a theory. 

● Also in Florida, in spite of a massive fear and smear campaign by the state’s CASA program, WFSU Public Radio reports that a bill is advancing that would give children actual lawyers who will fight for what the children want, not what the overwhelmingly middle-class disproportionately white CASAs happen to think should happen to children who are neither. 

● Although it’s not directly about child welfare, NPR has an important story about recovery from substance use disorder. Contrary to the common stereotype – a stereotype often used to justify the draconian timelines in ASFA -- most people recover and maintain their recovery.

● Nor does drug use necessarily impede parenting.  In fact, as Ericka Brewington writes in Black Health “My children never felt the impact of my drug use until they were removed from my home.” 

● Ignoring testimony from family defenders, family advocates and other experts, New York State is going to allow another backdoor way to increase the separation of children from their families.  Officially, The Imprint reports, it’s called “host families” but, as NCCPR has said since this program began, a better term is sugar-frosted foster care. 

● And in Maine, a group dominated by “providers” has released what it calls a “Framework for Child Welfare Reform.”  Unfortunately, it’s more like a framework for false consensus.

Maine’s child welfare providers produce a "framework" for false consensus

If the recommendations are enacted, the biggest beneficiaries might be 
Maine's paper mills, what with all the “theories of change” “logic models”
and “strategies” that will have to be turned out.

Multiple organizations in Maine – but with the lead organizations dominated by private “providers” have put out a document they’re calling “A Framework for Child Welfare Reform” in that state.  Yes, there are some good things in it, but in general it's really a framework for false consensus.  

The document is the latest to be released in Maine in the wake of what newspapers love to call a “spate” of child abuse deaths.  But instead of rethinking the take-the-child-and-run approach that contributed to these tragedies, and similar cases in 2018, the state has been doubling down.  They’ve been led, or rather misled, by the state’s child welfare “ombudsman,” Christine Alberi.  I describe the enormous harm she is doing in this previous blog post. 

This new document isn’t anywhere near as bad as what the ombudsman has been doing – or what some state legislators have been proposing.  One section of the document would actually make things better. 

But it also calls for a further expansion of the state’s family policing bureaucracy (including a whole bunch of new middle managers reporting to one of America’s worst child welfare agency leaders, Todd Landry) more power for the ombudsman and, to the extent that it endorses prevention, it is only as an add-on to the existing system.  There is nothing that would provide due process for families or in any way require a supremely powerful, unaccountable system to give up any of that power. 

And that’s the key problem. In child welfare, we all say the same things, but we all mean different things by what we say: Nobody ever says: “I think foster care should be the first resort!”  Everyone says it should be the last resort.  Nobody ever says “Boy, do I hate prevention; if there’s one thing I can’t stand, it’s prevention!”  By and large, the people who say they support “prevention” are sincere. But the fact that rates of child removal vary enormously from state to state and sometimes even county to county – or, as in Maine, they can shoot upwards with no evidence of an actual increase in child abuse -  shows that we all mean different things by “prevention” and have very different definitions of  “last resort.” 

So when a document like the Framework comes out – which talks about prevention but says nothing about due process or anything else to curb the power of the family police - everyone can then congratulate themselves, lots of new bureaucrats are hired and nothing really changes.  The biggest beneficiaries might be Maine’s paper mills – because so much paper will be needed for all those “theories of change” “logic models” “strategies” (which will require “strategic plans”) coordinating committee agendas and all the other gobbledygook included in the Framework document – all of which would delay actually doing anything. 

Reducing what we call child abuse is a problem that does not require any of those documents.  Nor does it require more time, paperwork and meetings, meetings, meetings, to enhance “cross-systems collaboration,” and it certainly doesn’t need more middle-managers reporting to Todd Landry.  What’s needed is this: 

● Find the poor people.

● Send money (it doesn’t have to be a lot).

● Let them buy the help they need.

● Provide meaningful due process for families, especially high-quality family defense, something not mentioned at all in the Framework. 

I suspect one reason we don’t see anything like this in the Framework is that the “lead organizations” behind it include far too many “providers” who live off the system as it exists today.  So the recommendations are structured in a way that they add on to the existing system, but don’t challenge it. 

Meaningful due process is the most important change the system can make – and the one providers would hate most.  Because even if Maine had all the help families need, in the current climate of foster-care panic, caseworkers are going to be afraid to use it.  That’s the nature of foster-care panic; every worker is afraid of having the next tragedy on their caseload, and every judge is even more afraid than before to let a child go home.  This is why it’s so important that the legislature send a strong message to Landry, Alberi et. al. that foster-care panic is making things worse and they need to stop encouraging it or enabling it. 

The one useful piece of paperwork 

That leads me to the one piece of paperwork recommended in the document that would be useful: outcome measures.  Typically, what agencies call outcome measures actually are process measures: How many families were visited once a month, how low is the caseload in what percentage of cases, etc.  

What is needed are agreed-upon measures that tell us if children are safer.  Ideally, the Legislature will commit to this right away.  

Because right now the de-facto outcome measure is: No child will die.  I know of no statewide system anywhere that has ever achieved that.  But as long as that is the outcome measure, sooner or later, when a child dies, certain players will say this “proves” that the prevention measures failed, and the cycle will start all over again.  

There needs to be a reaffirming of no child deaths as a goal, but a simultaneous repudiation of it as an outcome measure.  Outcome measures should be based primarily on something I recommended in the post about Alberi’s failures: Readings of a representative random sample of cases by unbiased experts (so not Alberi) supplemented by statewide data on overall reabuse and foster-care recidivism (the proportion of children sent home from foster care who are placed again).  Other measures can include reduction in placements in group homes and institutions and increases in the proportion of placements with relatives instead of strangers.

 

The good news 

The good news in this document is entirely in one section, “Invest in Supportive Services.”  In particular, the recommendations on family resource centers run by agencies other than Landry’s agency, the Office of Child and Family Services, increasing the availability in rural areas of buprenorphine, a treatment for opioid addiction, and, especially, more affordable housing. (There’s also a glaring omission: childcare.)  But while we’re waiting for the family resource centers and the new housing to be built, what about direct cash assistance so families can seek better housing in the existing market and buy the kinds of help the resource centers might offer?  

Also, while it’s important that family resource centers are not run by OCFS, it isn’t much better if they’re run by groups like some of the “providers” who signed onto the Framework – in particular those that oversee foster care and institutionalize children in residential treatment centers. Would you go to a family resource center staffed by “mandatory reporters” of child abuse whose institution could gain financially if your children were taken?  Rather the centers should be run by community organizations unconnected to the family policing system.

 

The bad news 

The Framework buys into the idea that Maine needs even more caseworkers.  That tacitly assumes the current level of investigations and removals is correct.  To the extent that there is a need for more caseworkers it is solely to restore the capacity of Alternative Response agencies – not OCFS.  And the idea that OCFS needs more middle managers again assumes that the issues are far more complex than they really are.  

As for all the talk about training, that always makes my skin crawl. That’s because for decades that’s been the knee-jerk all-purpose response to anything wrong in child welfare.  It never works, because training is no substitute for due process. 

Improving “cross-system collaboration” is more meaningless boilerplate that allows everyone to nod their heads and pretend to be doing something.  Do you know anyone who’s against cross-system collaboration? 

When it comes to oversight, the fact that they want to give the ombudsman more power is a de facto contradiction of everything else in the Framework.  But the Legislature itself should be providing ongoing oversight - and that also is recommended in the Framework.  Lawmakers should pass any laws needed for this and repeal any that get in the way.

 

And finally ... 

Beware of people who declare themselves advocates of prevention but constantly talk about the need for a “public health” approach.  That’s because child abuse isn’t a public health problem. It’s a social justice problem.

Lessons from two child welfare court decisions

Update, May 7, 2021: To his credit, during a virtual hearing of the Philadelphia City Council Special Committee on Child Separations on May 6 a top lawyer for the city's Department of Human Services says that, when it comes to the Philadelphia case discussed below, "we might have gotten it wrong" and "The Supreme Court came down in the right way."

1. Yes, families DO have Fourth Amendment rights when the family police are at the door.

2. No, caseworkers cannot evade accountability by claiming they were too stupid to know they’re not allowed to lie in documents used in court.

 The Pennsylvania Supreme Court has issued a scathing rebuke to Philadelphia’s family police agency, the Department of Human Services, rejecting the idea that its caseworkers are effectively exempt from the Fourth Amendment to the United States Constitution and a similar clause in Pennsylvania’s constitution.  On the contrary, said the court: 

We expressly hold that there is no ‘social worker exception’ to compliance with constitutional limitations on an entry into a home without consent or exigent circumstances. 

Across the country in Colorado, a federal court has rejected still another claim by family police caseworkers that somehow they have what amounts to a right to lie. 

The two cases have something in common: Both reflect the arrogance of a system with near-absolute power and no real accountability, a system in which people see their cause as so noble that it can justify violating everything from the Fourth Amendment to the Ninth Commandment.* 

The Philadelphia story 

On May 22, 2019, Philadelphia’s family policing agency, the Department of Human Services, received a call, apparently anonymous, from someone alleging that three weeks earlier a family had been sleeping outside the offices of the Philadelphia Housing Authority – suggesting that the family was homeless.  Then, on May 21, the caller said, the mother was back allegedly with one of her two children, outside the authority’s offices for eight hours and it was “unknown” if the child was fed during that time. 

A Philadelphia agency that helps homeless families contacted the mother who said no, she is not homeless.  She is, however, an activist who regularly protested outside the Housing Authority offices.  Further suggesting the family was not homeless: The caller who made the neglect report gave the family police the family’s home address. 

The mother says her children were not with her during her protest on May 21, and the call to DHS was retaliation for her political activity.  But even had the children been with her, does DHS think families should be required to notify family police and/or the general public whenever they feed their children?  Had mom had her child with her, would she have been expected to yell “Hey, look everyone!  I’m feeding my child!  Don’t call the family police on me!” – or face an allegation that it was “unknown” if a child was fed?  Does DHS think any time a child decides the food in the school cafeteria is too “gross” and decides to skip lunch – which might mean he doesn’t eat for eight hours – the school and/or the parents are guilty of neglect? 

Based solely on these allegations, DHS demanded to enter and inspect the family home (a somewhat odd demand when the allegation is homelessness). When the parents refused, DHS came back with police.  The parents still refused.  

The good news: DHS didn’t simply cry “emergency!” and tell the cops to break down the door and take the kids – you know, the way they do it in Arizona. 

The bad news: They didn’t do the right thing: apologize and just go away. Instead, they dragged the family into court and sought an order forcing them to let DHS in.  Despite the fact that the only witness to testify at the hearing, a DHS caseworker, contradicted some of the allegations in the case, the court readily agreed; illustrating once again that judges in family policing cases are far more prone to wield rubber-stamps than gavels. 

The court’s decision was based on the allegations and the mother’s “demeanor” when she testified (I’ll get back to that). The court order not only allowed the family police to poke and pry all over the house but also specifically barred the mother from recording the interaction. 

The inspection took place and found nothing wrong.  The allegations were false.  The family had endured the trauma for no reason and a family police caseworker wasted time that could have been spent on a case in which children really were in danger. 

The mother appealed the decision allowing the family police to barge into the family home.  A mid-level appeals court overturned the ban on recording interviews but upheld everything else.  The Pennsylvania Supreme Court strongly disagreed. 

DHS’ argument was the argument family policing agencies always make. It boils down to: We’re not like those other police, we’re just kindly caseworkers who are here to help – and besides our cause is so noble that if you interfere with us in any way children might be hurt!  So we should be able to do what we want when we want to whomever we want. 

The Pennsylvania Supreme Court pointed out, however, that by this reasoning someone accused of mass murder would have more Fourth Amendment protection than a family in which a mother is accused of maybe, possibly not feeding her child for eight hours.  The Supreme Court cited with approval an earlier Pennsylvania case deriding similar claims.  In that decision, the court noted that the sweeping claims of family police agencies 

Would give the state unfettered and absolute authority to enter private homes and disrupt the tranquility of family life on nothing more than an anonymous rumor that something might be amiss.   Despite their exaggerated view of their powers, the Fourth Amendment applies to them, as it does to all other officers or agents of the state whose requests to enter, however benign or well-intentioned, are met with a closed door. 

The Supreme Court also rejected DHS’ claim that being allowed to force their way into a
home and search anywhere and everywhere, through children’s rooms and into closets and cupboards is just, as the agency actually claimed, “a minimally-invasive spot check.”  (Indeed, were that so, one would think DHS would have welcomed a recording documenting their kindness, benevolence and the minimal nature of their intrusion.  Instead, they got the court to specifically prohibit the mother from recording the search.) 

In short, even the family police need “probable cause.”  And, the Pennsylvania Supreme Court decision makes clear they sure didn’t have it in this case. 

Recall the allegations: Homelessness and the child may or may not have been fed for one eight-hour period.  As the court explained: 

Having located the family’s home and repeatedly finding Mother and Father there, any allegation of homelessness was rendered moot. If all of this was not sufficient evidence of a lack of homelessness, by the end of the evidentiary hearing DHS unmistakably confirmed that it no longer considered the family to be homeless, as it requested an order to conduct a home visit at the very house where caseworker Richardson had visited twice on the day in question. At that juncture, the only remaining allegation … was that the anonymous reporter had not observed Mother feed one of the children on a single day for approximately eight hours. The DHS caseworker’s characterization of this allegation as “inadequate basic care” was hyperbole. 

As for the mother’s demeanor, the Supreme Court pointed out the obvious: 

[W]e note that Mother’s demeanor may well have been, in whole or in part, a reflection of her frustration based on her view that the entire episode was in retaliation for her  protesting  activities.

Writing in The Imprint, Prof. Vivek Sankaran, director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University Michigan Law School summed it up perfectly: 

In many ways, the decision was unexceptional. The Court simply applied decades of Fourth Amendment law to the facts of the case, and ruled that the government had no basis to enter the parents’ home. … None of us would want a social worker to be able to search our home based on such flimsy evidence provided by an anonymous report. 

But this decision is a significant win because all too often, well-established legal rules and principles are discarded by family court judges in the name of protecting children. … In any proceeding involving litigants with power, we would never tolerate this. Think about a medical malpractice claim involving a rich doctor, or a criminal case involving a high-profile defendant. Fraud allegations against a Fortune 500 company. We wouldn’t even allow a slight deviation from the rules. Lawyers would scream. Appellate courts would intervene. The system would move quickly to protect the powerful.     

But in child welfare, not only do we tolerate this, attorneys are often chastised when they demand that well-established processes be followed. … 

Thanks to pressure from family defenders, grassroots family advocacy groups and two members of the Philadelphia City Council, David Oh and Cindy Bass, though it’s still worse than its counterparts in most big cities, DHS is not as bad as it once was.  It is showing a little more self-restraint.  

But this case illustrates why counting on family police to restrain themselves will never work.  DHS’ claim of vast powers to effectively ignore the Fourth Amendment combined with a claim about how this intrusion is no big deal illustrates the urgent need for accountability.  And the fact that a trial court actually bought DHS’ b.s. is one more indication of the urgent need to open court hearings in Philadelphia (and everywhere else they now are closed) to the press and the public. 

The Colorado case 

Family police caseworkers have what is known as “qualified immunity” from civil lawsuits.  In layman’s terms that means you can’t win a suit against them unless their behavior was flagrantly malicious or flagrantly stupid.  In particular, they had to be clearly on notice that what they were doing was illegal and/or unconstitutional. 

So, for example, in the Philadelphia case discussed above, it’s possible that the judges put in the statement “We expressly hold that there is no ‘social worker exception’ to compliance with constitutional limitations on an entry into a home without consent or exigent circumstances”  [emphasis added] in order to put caseworkers on notice that they can’t claim qualified immunity if they fail to comply. 

Some readers may recall a California case in which a caseworker actually tried to claim what amounted to a constitutional right to lie.  If, in fact, she lied under oath and provided false evidence to a court (she did not admit it) then it still was o.k., she claimed, because there was nothing explicitly telling her that’s a violation of the rights of the parent who was suing her. 

In a decision aptly characterized as an “Epic Dis,” the Ninth Circuit U.S. Court of Appeals soundly rejected this claim, saying, in effect that the worker could be sued under what should probably be called the stupidity exemption to qualified immunity.  

Now the issue has arisen in another federal court. Once again, the immunity claim was dismissed, but this time the “dis” wasn’t quite as epic as it should have been. 

This time the case involved Krystal O’Connell, a Colorado mother convicted of killing her child, in part based on a confession she says was coerced and notes from a caseworker, Marcia Tuggle, in which she claimed O’Connell confessed.  O’Connell served ten years in prison before a new trial was ordered.  Prosecutors declined to try her again.  Her case is now listed in the National Registry of Exonerations. She is now suing a police officer who conducted the criminal investigation and Tuggle, who was conducting a child abuse investigation.  Full details are in this excellent account from Colorado Politics. 

This time, Tuggle, now a former caseworker, argues that if she, in fact, fabricated a confession (she does not admit to doing so) she’s still entitled to qualified immunity because courts have only explicitly said this is prohibited in a criminal investigation or if it’s done during a child abuse investigation then it’s prohibited only if the false statements were used to advance that specific investigation.  

Tuggle argues that in this case she was just there on behalf of child protective services and any alleged fabrication was not used to advance that particular investigation.  As for the fact that her allegedly falsified notes were a factor in a criminal prosecution, well, how could she possibly know that would happen?  Apparently, the fact that the notes she wrote allegedly fabricating a confession were from a joint interview in which the police officer conducting the criminal investigation was asking the questions did not clue her in. 

A federal district court did not buy this.  The judge noted that two prior court rulings in very similar cases “and, frankly common sense” should have made it clear to the caseworker that what she allegedly did was unconstitutional. 

When Tuggle appealed, the Tenth Circuit Court of Appeals noted that caselaw specifies that, in addition to specific court precedent “a right can be clearly established when it is obvious.”  The appellate court decision quotes from a prior decision from the same circuit which declared: 

“After all, some things are so obviously unlawful that they don’t require detailed explanation and sometimes the most obviously unlawful things happen so rarely that a case on point is itself an unusual thing.” 

But here’s the scary part.  The decision of the three-judge appellate court panel was not unanimous.  One judge actually bought the caseworker’s claims.  As the dissenter put it: 

As the district court observed, “common sense” should have informed Defendant that “a social worker, like any other public official, cannot knowingly create false information in furtherance of an investigation.” Yet, neither common sense nor our prior case law would have informed Defendant that she could not do so for constitutional reasons, as opposed to some general, moral reason. 

Even if one buys that, it raises another question: 

Why would any “child welfare” agency hire someone who, if, in fact she did what is alleged, didn’t know that fabricating evidence for any kind of investigation is unconstitutional, and/or is so lacking in morality that she would hide behind legal hairsplitting to commit an act even the dissenting judge could not justify on moral grounds?  Unless of course, that is the essence of the culture of the agency itself. 

At a minimum, it would be prudent for Colorado and every other state passed laws explicitly stating that it is illegal to lie in a legal proceeding and illegal to create false evidence – even in a child abuse investigation.  Because clearly, this is a field that has trouble grasping the obvious. 

*-In some faiths it’s the Eighth Commandment.  As the lawyers might say, the circuits are split.

For more about these cases:

Philadelphia: 

Kathleen Creamer of Community Legal Services of Philadelphia discusses this case, another Pennsylvania case,  and other child welfare issues on The Imprint podcast.

See also  The Imprint story, The Volokh Conspiracy blog and the analysis from CLS Philadelphia.  

Colorado: 

See this story from Colorado Politics

Miracle in Pinellas County, Florida! Child Abuse suddenly plummets by 50%! (Unless there’s some OTHER reason the sheriff suddenly found a way to stop taking away so many kids)

The rate at which children were torn from their homes in large Florida counties
where sheriff's offices are in charge of child abuse investigations.
  Note that even if Pinellas County has now cut removals in half,
it's still above the state average and well above Broward County.

Hey, remember when the Sheriff of Pinellas County, Florida, Bob Gualtieri, whose office is responsible for child abuse investigations in the county, insisted that his officers never, ever needlessly take children from their homes?  Remember how he said his officers followed a Florida Department of Children and Families framework for investigations “to a T”?   Remember how he insisted on this even though Pinellas tears apart families at one of the highest rates in Florida, even when rates of child poverty are factored in? 

Less than two months ago, he said this to the Florida news site Florida Politics 

“We will always make the decision that is in the best interest of the children, regardless of what others may want, and that includes removing them from harmful situations when required. All of our removal decisions are reviewed by a judge and routinely upheld. We will continue to act to protect vulnerable children.” 

Later, Gualtieri bragged about refusing requests from the former “lead agency” running foster care in the county, Eckerd Connects, to please stop taking so many kids.  And he did all this knowing that Eckerd was placing the children in situations so horrible that Gualtieri himself was launching a criminal investigation. 

But then, the miracle:  As Florida Politics reports, according to a press release from the Florida Department of Children and Families, thanks to the brilliant leadership of the Florida Department of Children and Families (bet you didn’t see that coming) in just two months they’ve cut the number of children taken from their families in Pinellas and neighboring Pasco County by 50%! 

There are two possible explanations for this: Either all of a sudden, child abuse in these counties declined by half  -- or, month-after-month year-after-year until now, the Sheriffs tore apart families needlessly, Eckerd was complicit and DCF turned a blind eye. 

If the data are correct, it is a small, encouraging first step - though it would still mean Pinellas County is tearing apart families at a rate above the state average, even when rates of child poverty are factored in.  

DCF Secretary Shevaun Harris deserves credit for being the first person in that job since George Sheldon to at least have the courage to admit that wrongful removal is a problem and take some steps to deal with it.  (We’ll see if she still has that kind of courage when the Miami Herald and the Tampa Bay Times come after her – as they will the next time there’s a high-profile death of a child “known to the system” in these counties.) 

But it’s not nearly enough.  The DCF press release is not a testament to sudden success but to horrifying long-term failure – by Eckerd Connects, by the sheriffs and by DCF itself. 

Think of what that press release really means: Hundreds, perhaps thousands of children needlessly traumatized, possibly for life, after being taken from everyone they know and love due to Gualtieri’s knee-jerk take-the-child-and-run approach and the failure of others in the system to stop it.  Many of those children were taken from homes that were safe or could have been made safe only to be abused in foster care.  Others were placed in conditions so horrible that, as noted above, Gualtieri himself has launched a criminal investigation. 

Gualtieri may claim that it was only all of a sudden that other agencies gave him alternatives to taking away all those children.  The press release seems to suggest as much – thanks to the magnificent leadership of DCF, of course.   But Gualtieri is also the one who demands no excuses from others.  As he put it when talking about Eckerd: “You don’t whine about it. … You figure out a way to make it happen." So why didn’t he take the initiative and build the necessary infrastructure of prevention to “make it happen”?  Why didn’t he show the same leadership as his counterpart in  Broward County, where the sheriff understood the problem and did something about it.  Broward tears apart significantly fewer children than Pinellas or Pasco. 

As for DCF, it effectively admits that poverty was confused with neglect in the part of the press release in which it brags that it 

Launched a direct referral process to Hope Florida – A Pathway to Prosperity and Care Navigation for the Sheriff’s Offices, providing assistance to 272 families who faced economic barriers in open child dependency cases. 

There should be no such thing as “economic barriers in … child dependency cases” because poverty is not neglect.  And again, why did Gualtieri and his counterpart in Pasco County wait for DCF – why didn’t they do this themselves? 

A failure of the judiciary 

The press release also illustrates the failure of the Florida judiciary.  Recall how Gualtieri justified his take-the-child-and-run approach by saying what bad family policing agencies always say: 

All of our removal decisions are reviewed by a judge and routinely upheld. 

Yet now we know that, at least half the time, those decisions almost certainly were wrong.  This further illustrates the need for Florida judges to start wielding gavels instead of rubber stamps – and it illustrates the urgent need for Florida to institute the model of high-quality family defense that has allowed other communities to dramatically reduce needless foster care with no compromise of safety. 

A failure of journalism 

And finally, there is another factor: journalistic malpractice by the most powerful media organization in the region, the Tampa Bay Times. 

Imagine how much better off hundreds of children would be now had the Times news side not ignored or downplayed the issue of wrongful removal.  How many children would have been spared the hideous conditions of Eckerd “care” had the Times editorial board, under former Editorial Page Editor Tim Nickens, crusaded to reduce entries into foster care instead of to increase them?  (By the way, Nickens also cited the fact that the judges kept rubber-stamping removals as some kind of proof they were justified.) 

And again, will DCF Secretary Harris have the guts to stand up to the Times, and the Miami Herald, when they come after her?

NCCPR in the Daily Montanan: The audit proves it: Montana is the child removal capital of America, and that’s bad for children

Auditors for the Montana Legislature have now made clear that Montana’s “child welfare” system is not about children and does not promote their welfare.  Perhaps now, thanks to a performance audit of the Child and Family Services Division, lawmakers will face up to the harm done by Montana’s dubious distinction, child removal capital of America.  

The audit reveals that Montana’s extreme outlier status does not keep children safe, and it reveals that the all-purpose knee-jerk excuse from CFSD – it’s drugs, you know – doesn’t hold up to scrutiny. 

But the report is mistaken in suggesting that if everyone just got the paperwork in order and understood the “practice model” things would change.  Saving Montana children from their saviors requires much more.

Read the full column in the Daily Montanan

NCCPR news and commentary round-up, week ending Jan 11, 2022

● Well what do you know, families DO have Fourth Amendment rights when the family police knock at the door – at least in Pennsylvania, according to a decision by that state’s Supreme Court.  The Imprint has a story, and The Volokh Conspiracy blog and Community Legal Services of Philadelphia have the details. 

● Speaking of things you may have thought children and families already had: Colorado Newsline reports that the state is considering legislation to require lawyers for children in family policing proceedings to behave like lawyers and fight for what the child wants, instead of pushing for whatever the lawyer happens to thinks is best, even if that means fighting against her or his own client.  Twenty-eight states now require this, though the mandate is not always enforced.  Florida Politics reports on a similar bill in that state, but sponsors will have to overcome the demagoguery of Florida's CASA program in order to get it passed.

● The attempt to use family policing to destroy Native American culture didn’t end with the horrible institutions known as “boarding schools.”  It was followed by a systematic campaign of forced adoption into white homes, spearheaded by, among others, the Child Welfare League of America.  The Philadelphia Inquirer tells the stories of some of the survivors.  Even one who was raised by loving white parents still bears deep scars: 

“You’re an Indian! You’re an Indian!” one of her cousins would taunt. “No, I’m not!” [she] would scream back, a denial that still embarrasses her and causes her pain. 

● There is still another study documenting the confusion of poverty with “neglect” this time in Britain. 

● The Western New England Law Review has a superb summary of the research showing the enormous harm to children caused when they are taken from domestic violence survivors (on grounds that the parent “allowed” the child to “witness domestic violence”). 

The article interweaves compelling case examples and a mass of research.  It also includes an excellent discussion of the dynamics of domestic violence, what makes it hard for a survivor to leave such a relationship (including the enormous role of poverty) and what courts – and the rest of us – should be asking concerning whether family policing agencies are genuinely making reasonable efforts to help them, as federal law requires.  Although it is specific to Massachusetts it applies everywhere.  And it is only about one-fifth the length of a typical law review article. 

For more on this topic see NCCPR’s summary of expert testimony and the outstanding reporting of USA Today Network Florida journalists. 

● Using data from NCCPR’s comparisons of entries into foster care and child welfare spending as well as other federal data, The Tennessee Tribune compares outcomes in Alabama, which reformed thanks to an innovative lawsuit settlement emphasizing family preservation to Tennessee which endured one of those typical settlements of one of those typical McLawsuits churned out by the group that calls itself Children’s Rights.  Guess which state is spending less but getting better results. 

● Foster-care panic is like a fire. It’s not a good idea to add gasoline.  But that is exactly what the child welfare “ombudsman” is doing in Maine.  I have a blog post documenting in detail how Maine’s child welfare ombudsman is dangerously wrong.