The unbearable vindictiveness of Judge Walther

See updates at the end of this post

Twelve judges – every higher court judge who has ever looked at the case – say Judge Barbara Walther was wrong when she rubber-stamped the removal of boys and young girls from the YFZ ranch. Nine of those judges said she was wrong to approve taking the rest of the girls as well.

Ever since the first three judges, on an appellate court, ruled against her, Judge Walther has made her displeasure clear. But apparently her vindictiveness knows no bounds.

This afternoon CPS and 38 parents – the ones whose cases were the subject of the Texas Supreme Court Ruling – reached an agreement. The children would be returned subject to certain conditions, most of them reasonable. (One that was unreasonable: requiring every parent to take a standard-issue CPS parenting course. It's almost as if CPS can't bear to allow an agreement or a case plan to exist without that one.) The agreement also said the families can't leave Texas, at least through August 31. It allowed unannounced visits to the ranch, and required the parents to cooperate with the ongoing investigation.

But that wasn't enough for Judge Walther. She decided to impose a series of extra conditions of her own, which appear to have no purpose other than harassment. (Both draft agreements are posted on the website of KXAN-TV) For example, under the Judge's proposed order, no child could be taken more than 60 miles from the ranch unless CPS was given 48 hours advance notice. It also would require the children and parents to submit to psychiatric examinations, and in the case of the children medical examinations – often essentially a CPS euphemism for stripsearches. And when the allegation is sexual abuse, the exams are more traumatic still.

Of course, as the investigation proceeds, there may be cause to seek such examinations, on a case-by-case basis, with the court approving them if CPS provides sufficient evidence that they are needed. (Unfortunately, courts typically approve whatever CPS wants whether it's needed or not). There may be cause to make other changes, one case at a time. But Judge Walther proposed to skip over such niceties and simply grant a blanket approval CPS didn't even request.

When lawyers for the parents objected, the judge said she'd sign the original order after all – but only if every one of the 38 parents signed it first. There's just one problem with that: The 38 parents are scattered all across Texas – because that's where their children are.

Of course, this can be done – eventually. Or, as seems likely, lawyers for the parents will go back to the appellate court.

So in the end the same agreement probably will take effect. The only difference is, the anguish of the children will be prolonged – all because of one judge's astounding vindictiveness.

UPDATE, MAY 31:

--For an excellent account of what went on in judge Walther's court, including a very good summary of the differences between the two proposed agreements, see this story in today's Salt Lake Tribune.

--Scott Henson, proprietor of the excellent Texas law and justice blog, Grits for Breakfast, put it perfectly: "After her petulant display in the courtroom yesterday, it's increasingly clear the judge has taken rebukes by higher courts personally and begun to behave like a pouting 9-year old. "

UPDATE, JUNE 1

--Two more newspapers from outside Texas have said CPS got it wrong: The Worcester, (Mass.) Telegram, and the Leaf Chronicle in Clarksville, Tenn.

As far as I can tell, since the appellate court ruled, that brings the number of editorial pages from outside Texas and Utah condemning Texas CPS to 11. The number supporting CPS: 0 - which is the same number of editorial boards outside Texas asking aloud if the same abuses of power are happening in their states.

Meanwhile, in what reads like a compromise forged after a very long editorial board meeting, the Star-Telegram essentially says yes, no, maybe, and only time will tell, while still missing the fundamental point. According to the Star-Telegram, "The fundamental questions of parental rights vs. the state's duty to protect children remain unanswered."

That's the way CPS wants to frame the issue, in order to divert attention from the massive act of institutionalized child abuse it committed. The real question is "what's the best, most effective way to protect children?" If you think the best way is to intern hundreds of them in a kiddie-Guantanamo, then scatter them throughout the state in foster care, where the rate of abuse is enromous, while traumatizing many of them emotionally, some of them probably for life - then you've got to applaud CPS. If, on the other hand, this seems like destroying children in order to save them, then the first thing you've got to do is stop confusing such destruction with "the state's duty to protect children."

But, this is still better than the Houston Chronicle, whose position apparently boils down to: damn the law, full speed ahead!

How many “cults” are there in Texas?

As we wait to see if Texas CPS will follow both the letter and the spirit of the State Supreme court ruling, (see previous post to this Blog) here's something else to ponder:

THE OFFICIAL TEXAS "CULT" CHECKLIST:

Criterion for cult status                 Allegation against FLDS    Child Protective Services

Does almost all its business in secret	X	X
Raises children on isolated compounds where they are at serious risk of child abuse	X	X*
Displays a profound bias against African-Americans	X	X
Arbitrarily moves children from home to home, reassigning them to different families	X	X
Kicks some people out when they are deemed too old, leaving them to fend for themselves on the streets	X	X**

*-They're called "residential treatment centers"

**-It's called "aging out"

The kids win again

The Texas Supreme Court has upheld the appeals court ruling ordering at least some of the Eldorado children returned home. The most important single fact about this is that these children now will be safer than they have been for the past several weeks, as they languished in Texas foster care. But beyond that, there is a lot we still don't know.

● The Supreme Court upheld a ruling that, technically, applies only to some of the children. Obviously it should apply to all. But will Texas CPS act in good faith or stall the return of the remaining children?

● The ruling specifies no time frames. There may be ample opportunity for Texas CPS to stall.

● The ruling appears to almost invite CPS to impose a whole slew of conditions on these families once they are reunited. Force anyone to jump through enough hoops and sooner or later they'll miss one – and then CPS can move to take the children all over again. If CPS seeks to impose onerous conditions, each family will have to go back to court to fight it. And we've already seen how willing Texas judges are to rubber-stamp so called "service plans" that include no services.

● Although the children will be safer on the Ranch than in Texas foster care, no one can guarantee that all of the children will be safe. In any community of more than 500 people, there probably are some child abusers, though there is almost certainly less child abuse than in substitute care. And yes, it's going to be harder to catch them now than it would have been had Texas CPS done this right in the first place – investigating carefully before acting and proceeding case by case. You may be sure that if a child is abused on the YFZ ranch or if even one family does move to another state, the people at CPS will rush to their favorite journalists to wag their figures and proclaim "We told you so!"

So let's get this clear at the outset: If anyone on that ranch manages to get away with child abuse now, the blame rests with Texas Child Protective Services. Their blundering, and their hubris created this mess. No one should let them get away with shifting the blame to anyone else.

--Don't let anyone tell you "the system worked." Hundreds of children endured trauma from which some never will recover, and none of it was necessary. The only way the phrase "the system worked" would have been justified is if the original request to seize the children had been turned down.

● If anything good can come out of all the suffering endured by these 400+ children, it is that maybe the rest of the country got a wake-up call. Texas CPS kept saying it themselves: All this was standard operating procedure, it's how we treat all families. And in that respect, almost every state is Texas. Aside from the sheer size of the endeavor, and those first days at CPS' kiddie-Guantanamo, nothing happened to these families that doesn't happen to hundreds of thousands of families every year. (And, in fact, even the interning of children in "shelters" in the first days after placement is not unusual). But the families to whom this normally happens are overwhelmingly poor and disproportionately minority. They rarely have good legal representation. And everything happens in secret. So nobody knows about it, and we can pretend it doesn't happen.

Maybe this case has stripped away the pretense and shown the nation how most CPS agencies work most of the time. Maybe people will start to question what's going on in the other 49 states, and demand real change.

The New York Times on the trauma to the children

There's a good story in The New York Times today on the enormous trauma experienced by children when they are taken from their parents, and the extent to which what Texas did to the children of Eldorado differs from best practice in child welfare. Alas, as Texas CPS itself repeatedly points out, it does not differ from typical practice in child welfare.

And add the Topeka (Kansas) Capital Journal to the long list of newspapers telling Texas CPS it made the wrong call.

Their own private Guantanamo

The website for The Nation magazine has published my article about civil liberties violations in the Eldorado case. The article includes excerpts from those searing statements from the mental health workers who actually saw what was going on. So, in addition to providing the links to the full statements, I thought I'd provide some more excerpts below.

For those who may have forgotten: After Texas Child Protective Services removed more than 400 children from the YFZ Ranch, the state arranged for the Hill Country Mental Health and Mental Retardation Center to send mental health professionals to the scene.

CPS required them to sign confidentiality agreements. But 11 of the workers were so appalled by what they saw that they felt they had to go public. Their anonymous statements were released to the media, and the Salt Lake Tribune posted them on the newspaper's website. I've previously posted the full statements on this Blog here Below, some excerpts:

All of the children were healthy when they were taken from their home, but when herded into extremely crowded quarters with an artificial environment (lighting on 24 hours a day, no fresh air, no sunlight, strange food, uncomfortable beds, surrounded by strangers watching their every move) they became ill. Chicken pox ran rampant through the children, diarrhea, respiratory conditions and other illnesses created greater discomfort and even hospitalizations.

Living conditions in the coliseum were not conducive to good health for anyone, and the presence of hostile CPS workers who spied on them constantly, kept them awake at night by shining lights in their faces and talking and laughing created enormous stress for the mothers and children. None of them slept well or enough.

The women and children were placed in barracks built in 1800 with no air and no indoor plumbing, 80 women and children on cots side by side, even pregnant ladies.

The more uncomfortable they were, the more CPS thought they would talk.

The women were lied to and denied access to their attorneys. They were told that they were going to be moved to another location so families that had been torn apart during the move from the ranch could be reunited, but when [we] got off the bus at the new location, the mothers of children age 12 and older were taken through a door and loaded onto another bus to take them back to the ranch. They didn't even get to say goodbye to the children.

On the awful day that they separated the mothers and children the level of cruelty and lack of respect for human rights was overwhelming. Crying, begging children were ripped away from their devastated mothers and the mothers were put on buses to either return to the ranch or go to shelters. Most went to shelters because they were told they would be able to see their children if they did not return to the ranch. This, of course, was another lie.

The floor was literally slick with tears in places. A baby was left in a stroller without food and water for 24 hours and ended up in the hospital. A 4-year-pld boy was so terrified that he snuck away and hid and was only found after the coliseum had been emptied the next day.

CPS workers were everywhere and these people had no privacy. CPS intruded on their every activity and conversation, and even followed us around and made notes on everything we said.

I witnessed a small boy, maybe 3 years old, walking along the rows of cots with a little pillow saying "I need someone to rock me, I just want to be rocked, I want to find a rocking chair." Two CPS workers were following him and writing in their notebooks, but not speaking to him or comforting him.

As I was talking to a mother, her child spilled water down his front; he stood up on the cot so that she could wipe him off. A CPS worker strode over and told the mother "You need to set him down NOW." The woman nodded and continued to wipe his shirt. The CPS worker then said "If you don't sit him down NOW I will set him down for you."

I witnessed a young mother … be required by CPS to board the bus back to the ranch, though her young child was in the hospital with 104 degree fever and even though the child's physician had personally requested the mother's presence at the hospital. This event haunts me still, and I cannot imagine such a heartless act.

CPS yelled at the children, would not allow the women to talk with their lawyers, deprived them of sleep and constantly accused them of things most of them did not understand.

CPS workers … asked the women to follow them into another room while the children were asked to follow other CPS workers and escorted them to the other end of the facility. As the children became scared and realized that their mothers were not going to return to them, they began to cry and become emotional. CPS responded by placing bed cots upright and building a wall so that the children could not see what was going on at the other end of the facility.

On the last day of my stay at the coliseum, the mothers had been removed …The children had cried bitterly on the removal of the mothers and they were not with strangers. The noise level went up several decibels as crying and running and screaming took over. Children were grabbing toys from others and using the toys as play weapons against each other and their 'captors.'

The entire [mental health] support staff was 'fired' the second week; we were sent home due to being "too compassionate."

Dept. of doublethink

Here's what Texas CPS managed to do on the same morning:

● Tell the Texas Supreme Court that if they have to reunite mothers and their children there's a huge danger that the families will flee to another state.

● Agree to reunite one more mother and her children.

In fact, the agency previously had reached agreements to reunite 12 other children with their mothers and, in some cases, fathers as well. Most of the time this happened when the agency was forced to compromise because lawyers were able to bring the cases outside of San Angelo and away from the "hanging judge" of Tom Green County, Barbara Walther. There's a searing account of one of the earlier cases, the difficulty in getting the family back together, and the harm done to the children, in today's Salt Lake Tribune.

But this time, CPS felt it had to compromise even in Walther's courtroom. And this latest case also was the same one in which CPS, just last Friday, had introduced the notorious Warren Jeffs photo. The photo had nothing to do with this particular family; and the fact that CPS now has cut a deal in this case is further evidence that the photo was really aimed at two other courts, the Texas Supreme Court and the court of public opinion.

Also today, two more editorial boards said Texas CPS got it wrong: The Star-Ledger in Newark, N.J and the East Valley Tribune, which covers suburban Phoenix. The Tribune reversed its earlier support for the raid in light of new information.

At last, a fair fight!

The Dallas Morning News claims today that when Texas CPS went after the children of Eldorado, “Child welfare officials were up against a culture of secrecy, unlimited resources and [people] well-schooled in the art of misleading…”

Sounds like exactly what the families were up against.

UPDATED MAY 25: Texas CPS’ latest tactic: Disseminating kiddie porn

See the end of this post for updates.

By now everyone has probably seen the photo: Warren Jeffs, leader of the FLDS – and a man convicted of being an accessory to rape – kissing a girl Texas CPS says is 13, in the manner that "a husband kisses a wife."

The photo provides strong evidence that Warren Jeffs should not have custody of his children. But the photo wasn't entered into evidence in the trial of Warren Jeffs. Rather, it was put on display at the trial of an FLDS member who is trying to stop the state from separating her from her newborn. This mother's oldest child is 3.

That makes the photo about as relevant as using a compromising photo of the parish priest to take the children of all the parishioners. (And before anyone makes the "pervasive" argument, take another look at the NPR story about an isolated rural parish in Alaska that was the subject of an earlier post on this Blog.)

Of course the photo wasn't really meant to be evidence in that particular case at all. It was another sleazy CPS exercise in shock to influence the court of public opinion, a tactic it's used from the beginning (remember the "cyanide document" which actually was from a first aid manual and the allegations about broken bones which turned out to be no more widespread at the YFZ ranch than in the general population). And if it was aimed at any real court at all, it would be the Texas Supreme Court which is preparing to hear CPS' appeal of a decision ordering many of the children returned to their homes.

CPS' little exercise in disseminating kiddie porn is, in fact, the state's entire case. It goes like this: Warren Jeffs is evil. Everyone in the FLDS is a sheep, slavishly doing anything Warren Jeffs tells them to do. Therefore every child is in danger.

The case fails because: The state has provided no evidence that every member of the FLDS is a sheep. Where the children are young, there is plenty of time to find out if the parents will or will not protect them when they are older, and plenty of time to teach the mothers that pressuring, let alone forcing a child into an underage "spiritual marriage" is rape. And even where the children already have reached puberty, there is no danger to them in living with their mothers, away from the men.

In contrast, the children have been placed in severe and immediate danger - right now - by CPS itself. As the lawyers from Texas Rio Grande Legal Aid, who won the appeals court victory put it, in asking the Supreme Court to uphold that victory, and deny CPS' request to "stay" the order from the appeals court:

Right now these children are experiencing the irreparable harm, pain and distress of enforced separation from their parents (and, in many cases, siblings). That clear, continuing harm outweighs any other potential countervailing interest, including any concerns about cost or other administrative difficulties. By denying the stay and allowing the court of appeals order to take effect, this court would halt the only harm that everyone is certain is occurring. As the court of appeals correctly determined, there is no evidence of any equivalent harm - including abuse - that could justify the stay.

That is made abundantly clear by the statements of the mental health professionals who witnessed the children's first days in foster care. And in one case that was the subject of an individual hearing before the appeals court ruled, CPS forgot to stick to its party line about how all the children are "doing well." The Deseret News reports that during the hearing "CPS caseworkers acknowledged that the children, 3-year-old Amber and 2-year-old Rulon – are not doing well in foster care. The children have become withdrawn and have not been eating well or sleeping well in foster care."

The state's position is the equivalent of taking a child to a doctor because he may have a serious infection in his big toe. The doctor says: "We're not sure if the toe is infected or not. If it is, it could spread and become a serious danger to your child. But it spreads very, very slowly, and there are lots of very effective medications we can use to cure it. But instead, we're going to amputate your child's leg. And while we're at it, we'll cut off his other leg – just in case." (And before anybody says: This is different because the children can be returned, the fact is limbs sometimes can be reattached, too – but plenty of damage remains.)

There is a reason every doctor is supposed to learn the adage "First, do no harm." Unfortunately, they don't teach it at child welfare agencies.

The case the state used as an excuse to enter its kiddie-porn into evidence illustrates the point. The mother, Louisa Bradshaw Jessop, does indeed some across as clueless, and as someone who might well follow any orders issued by an FLDS leader – with no idea that those orders were harming their children. So in this particular case, CPS offered evidence that that it would be ill-advised for this particular mother to have her children returned and to live on the ranch unsupervised – if, that is, her children were approaching puberty. But Louisa Bradshaw Jessop's oldest child is 3. So there would be no danger to the child in returning the whole family to the ranch under CPS supervision. Or there would be no danger in reuniting the family away from the ranch, as CPS has done in cases involving 12 other children. And if even that seems too scary, there certainly is no danger in letting the children live with their mother away from the ranch. Any of those options leaves plenty of time for Ms. Jessop to learn where the line is between religion and rape – without punishing her children for her ignorance.

CPS wants us to believe that there are only two options: Amputation by foster care or do nothing at all and let the infection, if there is one, spread. They've managed to sucker at least one newspaper, The Houston Chronicle, which declared in an editorial that:

The appellate justices might be correct regarding the law and the rules of evidence. However, common sense suggests that society has a right to remove children from an environment in which 13-year-old girls are made to marry older men and bear their children. CPS officials maintain there is abundant evidence of a pervasive pattern of sexual abuse.

Perhaps some of the children had not yet been abused, but for many, that fate lay clearly ahead. Those who might be spared physical or sexual abuse were still vulnerable to emotional trauma inflicted by a grotesque and unhealthy environment that has little to do with worship and religion and everything to do with underage sex.

Wow. First of all, who would have figured a prominent member of the MSM (mainstream media) would go in for state-sanctioned lawlessness? (The court might be right about the law, but…???) Second, this argument assumes everything CPS alleges is true, and CPS hasn't had a good track record for accuracy. And third, even if everything CPS alleges is true, there are ways to protect the children without amputating their mothers.

But at least the Chronicle isn’t bored

The same can’t be said for a very young, very much full-of-himself producer (or perhaps lower ranking staffer) for a television news organization – the kind of young man my wife’s family would call a “freshaffril.” (pronounced fresh-uh-FREEL). Johana Scot of the Parent Guidance Center had an encounter with this young man while in San Angelo for the court hearings last week. Given the chance to be an eyewitness to history, he pronounced the life-and-death struggle in the courthouse “boring.” And he added: “I just want to get home and go to sleep in my own bed."

To which Ms. Scot replied: “So do the children.”

UPDATES, MAY 25:

There are signs that the rest of the country may be catching on, at least on the editorial pages. Ever since the appeals court ruling, editorials supporting the ruling and opposing Texas CPS have turned up in the St. Petersburg Times, the Augusta (Ga.) Chronicle, the Wilmington (Del.) News-Journal, the Colorado Springs Gazette, the Kennebec Journal (a very good newspaper in Augusta Maine) and the Paris Post-Intelligencer. (That’s Paris, Tennessee, not France or Texas). Yes, a couple of these newspapers have been all too willing to support the overreach of CPS in their own states, but perhaps this will give them second thoughts.

I have yet to find an editorial favoring CPS outside of Texas since the appeals court issued its ruling. It is a different story in Texas, where, so far the only paper I’ve found favoring the appeals court ruling is the Wichita Falls Times Record News. And Sharon Grigsby, an editorial writer for The Dallas Morning News has publicly dissented from that paper’s support of the take-the-child-and-run approach on the paper’s Opinion Page Blog.

Scott McCown's commendable candor. No one has worked harder to promote a take-the-child-and-run approach to child welfare in Texas than Scott McCown, a former juvenile court judge who now heads a think tank known as the Center for Public Policy Priorities.

Like most people involved with child welfare, McCown means well. He is beloved by Texas liberals because he champions throwing money at social problems (a view with which I concur). And he is the “Godsource” for journalists covering child welfare in the state – that one source whose words always are treated as Holy Writ and whose claims are never questioned.

But McCown is a great example of the fact that nothing will get a liberal to renounce everything he believes in faster than whispering “child abuse” in his ear. McCown’s advocacy has encouraged not one but two “foster care panics” – huge surges in child removals – in Texas within the past decade. As a result, whenever new money is wrung out of legislators, most of it winds up wasted on more needless foster care.

He takes the all-too-common liberal position on child welfare: We’d like to spend more so you’re not mired in poverty, but since the legislature won’t do that, we should take away your kids instead.

But at least now his extremism is starting to show. While others have said that the issue is not polygamy per se, McCown has made comments indicating that he might well have supported the raid even had there been no allegations of coerced “spiritual marriages” and all acts of polygamy were committed by consenting adults. And while almost everyone who favors a take-the-child-and run approach pretends they don’t equate poverty with neglect, it appears that, in an interview with the Deseret News published today, McCown let the mask slip. He was explaining why Utah and Arizona, which have so many more polygamists, can’t, as a practical matter, take away all their children, while Texas can, when he drew this analogy:

"Inside Texas as well, along the border where you have thousands and thousands of children in very severe poverty, a child might be left in a neglectful situation. But in a rich, suburban area in the northern area of the state, it might not be tolerated. What's the difference? You can remove one, you cannot remove thousands."

Or, maybe, the difference is that in poor communities, people are less likely to confuse money with love.

Perhaps it’s time for Texas media to at least stop referring to McCown’s think tank as “progressive” or worse, an organization that “advocates for low-income Texans.” Unless of course, there are a whole lot of low-income Texans saying: “take my children – please!”

Echoes of McMartin

Back when all this began, in my first post to this Blog concerning the raid in Eldorado, I said that if the allegations were true, taking the children might have been the least detrimental alternative – particularly since Texas apparently was doing something extraordinarily humane and allowing the mothers to stay with their children. (We all know how that turned out.)

But I also noted the tendency of child welfare agencies to cry wolf: "All one has to do is recall the wild allegations of mass molestation in day care centers during the early 1980s to know that child protective services can't always be counted on to get the facts right."

I am old enough to remember those cases. The most notorious was the McMartin Preschool, but they all were about the same: Very young children would be asked all sorts of leading questions and, encouraged by their "therapists," tell stories that were more and more bizarre. Once could easily come to believe that there was a Satanic Cult of child abusers in the basement of every day care center – complete with secret tunnels to get in and out. And a cadre of "experts" told credulous media that "children don't lie" about these things.

In my book, Wounded Innocents, (Prometheus Books, 1990, 1995) I wrote that

if children don't lie, then Bakersfield, California is a hotbed of cannibalism. If children don't lie, there is a secret underground amusement park near Fort Bragg, California. You get in from the ocean by submarine. If children don't lie, then they are being flown from their day care centers all over the country in planes to be molested, then returned in time to be picked up by their parents. Some of the molesters don't need a plane. They can fly through the air all by themselves. If children don't lie, then a child in Missouri killed a justice of the Supreme Court. If children don't lie, some children in El Paso, Texas had their eyes removed – and then put back.

All of these statements have been made by children in connection with a sexual abuse allegation.

Is it any wonder that eventually the media critic for the Los Angeles Times would win a Pulitzer Prize for a series asking why in the world the media hadn't been more skeptical about the allegations in the McMartin case?

I also wrote something else. There is real child abuse out there, including real cases of children sexually abused in their day care centers. The witchhunts of the 80s didn't just harm all the children caught up in them and all the day care providers and, in some cases, parents, wrongly accused – they also made it harder for real victims of real abuse to be believed.

Now it's looking more and more like the case of the Eldorado 400+ has been "McMartinized." Even before a Texas appeals court ruled that many of the removals of children are illegal (a decision Texas CPS is now appealing) one allegation after another was crumbling.

Remember the breathless announcement that a document had been found on the ranch concerning cyanide? It was part of a first aid manual. Remember the claims about young children with broken bones? Looks like the proportion of such children is about the same as in the general population. And every day more and more "underaged" mothers turn out to be adults. (I've noted previously that coerced sex is rape no matter what the age of the woman, but the only evidence CPS has put forward for coercion is the age of the mothers. And while Texas CPS rushed to tout the high number of underage mothers – and got front page coverage all over the country, now that the numbers are falling, a CPS spokesman says: "The numbers aren't important to us.")

And once again, it's not only the children needlessly taken away who suffered. Almost certainly, there are, in fact, some underage mothers on the YFZ ranch. And there are other indications that there have been some cases of actual child abuse. Those cases need to be investigated thoroughly – and individually. But now it's going to be harder to make those cases because of what CPS has done to its own credibility.

There's also a bigger question: This time, will we learn anything from all this?

Back when the day care center witchhunts ended, I thought that there was one silver lining in all of it. As case after case across the country fell apart, I assumed that, at last, press and public would be more skeptical about claims from CPS agencies and more interested in curbing their vast, unchecked power. I was sure the skepticism over McMartin-type cases would translate to the biggest, worst problem of all – the removal of tens of thousands of children needlessly from poor, usually minority families, when family poverty is confused with neglect.

Boy, did I get that one wrong.

In 1995, in an updated paperback edition of Wounded Innocents, I wrote that "Among my biggest disappointments over the past four years has been the failure of the growing skepticism about allegations of sexual abuse to translate into similar skepticism about the far more pervasive problem of the confusion of poverty with neglect." I noted that one year after Newsweek ran a cover story called "Rush to Judgment" expressing skepticism about high profile sex-abuse cases, the same magazine ran a huge, sleazy story trashing family preservation efforts – efforts geared largely to helping impoverished families. Many other news organizations did the same.

Those stories did enormous damage, culminating in passage of the so-called Adoption and Safe Families Act, a law that has done enormous harm to children. (For more on ASFA see NCCPR's Brief Publication A Child Welfare Timeline and our Analysis of ASFA.) And in almost every year since the day care witchhunts ended, the number of children taken from their parents has been higher than the year before.

The reason boils down to race and class. The day care witchhunts almost always engulfed white, middle-class families. We could imagine that it could happen to us. Most of the time, the long arm of CPS only affects them – poor people and minorities. Indeed, when people contact me about their individual cases (something I wish they wouldn't do because, sadly, NCCPR is simply too small an organization to help) they sometimes seek to reassure me that they're different – they're not like those poor people, or those "drug addicts" or whatever.

Well, CPS thinks you're just like them – and now that you and "they" have something in common – wrongfully losing your children - maybe you should consider that "they" may be more like you than you think.

The FLDS case has offered a rare window into the real operations of a child welfare agency – or perhaps it's more of an X-ray of the agency's soul. And it's CPS itself that keeps saying this is how they behave in every case. If anything, the FLDS mothers actually got better treatment than the typical poor, minority single mother caught up in the system – they certainly got better legal representation.

So this time, will the skepticism over how white women in Eldorado were treated translate into skepticism over how CPS agencies treat Black women in, say, Philadelphia or Washington D.C.? Will there be any calls, particularly on the part of those who normally champion civil liberties, to get serious about checks and balances and due process in child welfare cases?

This time, I think I'll refrain from predictions.

Texas appeals court rules for the children

    A Texas appeals court has ruled that Texas CPS had no right to remove many of the children taken from the YFZ Ranch in Eldorado. It is not yet clear how many of the more than 400 children are affected and it is not known if Texas CPS can or will appeal. The decision has been posted by CNN and is available here.

    As is often the case, some of the most telling material is in the footnotes, particularly notes 9, 10, and 11, where the appeals court demolishes CPS' claim that the ranch is one household and therefore if one child may have been abused, all supposedly are in danger. In Note 11 the judges write that "the simple fact, conceded by the Department, that not all FLDS families are polygamous or allow their female children to marry as minors, demonstrates the danger of removing children from their homes based on the broad-brush ascription of every aspect of a belief system to every person living among followers of the belief system or professing to follow the belief system."

    And, of course, the court stated the obvious. The issue here is removal of children without a hearing or even any real investigation first. That is such a drastic action that legally it can be done only when the danger to the child is immediate. When the allegations involve abuse of teenage girls and "grooming" boys to be abusers, obviously the danger to younger children is not immediate. So there is time to investigate and see if the danger is real – before subjecting children to the clear and present danger of foster care. The question to CPS is: What part of "immediate" don't you understand?

    This will not stop apocalyptic statements from the take-the-child-and-run crowd. Expect phrases like "hands tied," "protecting abusers instead of children" to turn up all over the airwaves from all the usual suspects. None of it is true. The appeals court said only that before you remove a child in an emergency, there really needs to be an emergency. Otherwise, you need to investigate before taking actions likely to destroy children in order to save them.

    

Meanwhile, back at the ranch

Before getting to New York, a quick note about Texas. An excellent source of information about the Eldorado case, and Texas criminal justice in general is Grits for Breakfast, a blog available here: http://gritsforbreakfast.blogspot.com/ I learned about it from another post from Dallas Morning News editorial writer Sharon Grigsby to that newspaper's blog for editorial writers, available here: http://dallasmorningviewsblog.dallasnews.com/archives/2008/05/cps-vs-flds-0-f.html In her current post Ms. Grigsby is unusually candid about some of her colleagues.

In New York, the irony derby begins right now

Earlier this week I wrote about a draconian new confiscation-at-birth policy in New York City. Under the policy, any newborn whose siblings already are in foster care is almost certain to be taken from her or his parents. I wrote that a New York Times story about the policy

ends with a comment from one of the huge private agencies that dominate foster care in New York City and live off a steady supply of foster children:

Bill Baccaglini, executive director of New York Foundling, one of several dozen foster-care agencies that will help administer the new policy, said he was "willing to be the subject of a little criticism from the civil libertarians."

"This comes out of the best of intentions," he said. "Being on this side of the business I know if we make a mistake you could lose a life."

In one sense, he's right. ACS has been making precisely this kind of mistake for nearly two-and-a-half -years now, engaging in policy-by-horror-story, issuing one draconian policy or pronouncement after another. The number of children taken from their parents over the course of a year is up by 44 percent since the last fiscal year before Nixzmary Brown died. And deaths of children "known to the system" are up sharply – something the Times keeps forgetting to put in its stories.

Sadly, there's already been a reminder of just how foolish Baccaglini's comment was.

We don't yet know why six-year-old Taylor Webster was placed in foster care. We do know this: According to prosecutors, last Saturday, Taylor complained about a headache. His foster mother, a long-time home health aide, gave him children's Motrin. When that didn't work, prosecutors say, she gave Taylor a skin patch containing an enormously powerful narcotic, fentanyl. Fentanyl is described as more powerful than morphine; it's often used to ease the pain of terminal cancer patients, and only after other narcotics have been tried without success.

The next day, Taylor was dead. The foster mother has been charged with criminally-negligent homicide.

We also know that, at the time Taylor died, the city's Administration for Children's Services had three previous complaints about the foster mother. Two of them alleged excessive corporal punishment and one still was open when Taylor died. A law enforcement source told the New York Post the home was "squalid. You could barely move around." And we know that, in addition to Taylor, the foster mother had five birth children, at least one of them an adult, and two adopted children.

Of course, no news account, certainly not anything in the Times, has said that the death in foster care "comes at a time when entries into foster care are up 44 percent, and ACS has announced a draconian new policy to confiscate newborns who have siblings in foster care." And no Times story says Taylor's death "raises questions about the push to take away more children over the past two years."

But that's only the beginning of the ironies here. Unfortunately, the sadness over the fate of this little girl is not eased by the irony in so much of the response so far.

First up, Mayor Michael Bloomberg. In the years since Nixzmary Brown died, the Mayor has handled things far better than most politicians. Compared to, say, the former mayor of Philadelphia and the current Mayor of Washington, D.C., Bloomberg has been a model of statesmanship. But that's not setting the bar all that high. And I suspect a lot of the worst decisions in recent years, including the new confiscation-at-birth policy, are responses to pressure from the Mayor's office - because I think the professionals at ACS know better. And the mayor certainly isn't immune from unintended irony. So here's his entry in the Irony Derby:

"There was no reason to go to court and try to remove the child. There's not any evidence that she deliberately tried to hurt the child, so it's a little bit different than other situations."

But it was just last week that ACS announced the new confiscation-at-birth policy. Almost every case, Almost every time. That means plenty of situations where there was less evidence than in the Taylor Webster case. And judging by news accounts concerning those previous allegations, there are plenty of children in foster care right now who were taken for less.

No, what really sets this case apart is an unwritten policy at ACS - and every other child welfare agency. It's the same double standard that allowed a little girl named Caprice Reid to be tortured to death in 1997, in a New York City foster home opened by one private agency after another shut it down as substandard. When investigating abuse in foster care, ACS is, in effect, investigating itself. So there is an enormous incentive to see no evil, hear no evil, speak no evil, and write no evil in the case record. That's why academic studies repeatedly find vastly more abuse in foster care than turns up in official statistics. And, of course, the problem is compounded when a surge in removals of children forces agencies to be less choosy about where they are placed.

I'm not saying the mayor is necessarily wrong. We don't know yet if there was enough reason to do more, without benefit of hindsight. I'm only suggesting that there is a double standard at play.

But the Mayor is topped by Council Member Bill de Blasio, who chairs the relevant committee. Whenever there's a firestorm over child welfare, de Blasio rushes to pour on some rhetorical gasoline. He's one of the reasons removals of children have shot up, with all the disastrous consequences that followed.

Now de Blasio tells us that Taylor's death "proves that we have more work to do." No, no, Council Member de Blasio. Really. You've done more than enough already.

But de Blasio is topped by that comment noted above from Baccaglini, the one in which he justifies indiscriminate removal of children on grounds that "if we make a mistake you could lose a life."

But even Baccaglini doesn't win the Irony Derby. That honor goes to ACS, specifically the statement the agency issued after Taylor's death, concerning the surviving children in the home. Said ACS:

"We are working with police in this investigation and are ensuring the safety of the children in the home."

How child abusers gain from the FLDS “service plans”

What is most striking about the cookie-cutter "service plans" issued to mothers of the children of Eldorado is not the fact that they are, in fact, non plans that offer no services. That's actually the norm with child welfare agencies, something I'll return to below.

A copy of the plan has been made available by The Deseret News. What truly is striking is who benefits most from these documents: Child abusers. In particular an especially odious sub-species - husbands/boyfriends who beat and terrorize both their wives/girlfriends, and their children. The language in these plans is one more weapon for these abusers to use against the women and children in their lives.

I refer specifically to this language:

"A parent is also responsible if they allow anyone, including their husband or wife, to abuse the child, or if they otherwise fail to act and it results in abuse or neglect of the child. Thus, not stopping someone from abusing your child is as bad as abusing the child yourself."

Now, imagine a woman who has been beaten repeatedly by her husband/boyfriend. Imagine that the husband/boyfriend also is beating their children. Any expert on domestic violence will tell you that the most dangerous time for such a woman is when she actually tries to escape. But now there is one more reason for her to stay. If she threatens to call the police and seek protection for herself and the children, the abuser can waive this document in her face and say: "Go right ahead; call the cops. They'll just call CPS and take away the kids – 'cause you're just as responsible for their beatings as I am!"

Similarly, a mother who has been planning a clandestine escape in the middle of the night, with her children, is bound to have second thoughts when she hears that CPS deems her equally responsible for the abuse of her child.

This is exactly what the battered women's movement has had to fight for decades. And if mom calls the cops and they do indeed call CPS and CPS does indeed take the children – as they probably will – that removal will be a double blow for the child. Because all the usual trauma of removal will be compounded by terrible guilt: A small child will believe that she must be responsible for her abuse and the abuse of her mother – why else is she now being punished by being taken from her mother?

This is precisely why a successful class-action lawsuit stopped New York City's child welfare agency from taking children of battered mothers who "allowed" their children to "witness domestic violence." As one expert said during his testimony, taking children in such cases is, for the children, "tantamount to pouring salt into an open wound." (The section of the decision summarizing the expert testimony is available on our website here.)

Similarly, since this case began, I've suggested that the right response in Texas would have been to treat the mothers and the children as refugees, like the Vietnamese boat people who fled Southeast Asia 30 years ago. Some boats were attacked by pirates who raped the women and children. But when these refugees finally reached our shores, no one was so unspeakably cruel as to suggest that the children should be traumatized by being taken from their mothers because those women could not stop them from being raped.

But look at the language in the "service plan" again: "not stopping someone from abusing your child is as bad as abusing the child yourself." No exceptions. No case-by-case examination of the circumstances. By that standard, some of the boat people would indeed have been labeled child abusers and had their children taken.

In the specific case of the women on the YFZ ranch, for starters, in a great many cases we have no evidence that they did, in fact, tolerate coerced marriage and rape (and at any age, forcing a woman to have sex against her will is rape). And where that may have happened, the women either may not have known the practices were abusive, or were powerless to stop it.

In all of these cases, far more harm is done by separating the children from the mothers. Yet that smug, sanctimonious declaration that "not stopping someone from abusing your child is as bad as abusing the child yourself" takes account of none of this. Acting on that statement in the way Texas CPS has done is, in itself, an act of mass child abuse.

No services in the "service plans"

There has been much discussion of the fact that the so-called "service plans" are just cookie cutter documents which don't take into account the needs of individual families – and provide no actual services, just a list of hoops the families have to jump through.

So what else is new?

I've never seen a Texas service plan before, but news accounts about "service plans" from all over the country indicate that they almost never are individualized and almost never provide actual services. For example, even when what a family needs most is concrete help like day care or housing assistance, that's almost never offered. Instead the family is simply told to find housing and child care on their own, even as they are sent on a forced march through often meaningless "counseling" and "parent education."

None other than Scott McCown, a former judge and the state's leading advocate of a take-the-child-and-run approach to child welfare, says the plans are typical – and he has no problem with that.

Notice in particular the grid setting out who is obligated to do what. Notice how the child welfare agency is obligated to do absolutely nothing – except hand out referral slips. Over and over and over, the only obligation the agency imposes on itself is "make referrals" "make referrals" "make referrals." There is no obligation to actually get the service into the hands of the family. There's no obligation even to know if the referral slip leads to an actual service or a waiting list. And of course, nothing to indicate that the service bears any relation to what the family actually might need. Like most families in this situation, the mothers are, in effect, thrown into the deep end of the pool and told to sink or swim.

And when it comes to what the families are likely to need most, concrete help, DFPS doesn't even obligate itself to hand out a referral slip – it says it will do so where such services are "appropriate and available."

The real purpose of these non-plans seems to be to set the families up to fail, the necessary precursor to either taking permanent guardianship of the children or termination of parental rights.

Texas CPS says it will add specifics later. But that means only that the judges who rubber-stamped the plans in 40 separate cases Monday approved them without actually knowing what's going to be in them.

Confiscating a child's Bible

One area where I've agreed with CPS is when the agency says the issue isn't religion. I've said several times, the issue is rape – but none of the mothers has even been accused of that, and there is no reason the children can't live with their mothers while the charges are investigated. But, in at least one case, CPS apparently has infringed on the religious rights of at least one child – by confiscating his copy of the Book of Mormon, a book that all Mormons, not just fundamentalists, consider a third testament of the Bible. It may have happened in more than one case. And it appears that the reason for this is that the Bibles contained pictures of Warren Jeffs, the leader of the FLDS and a convicted sex offender.

Being a convicted sex offender is certainly a good reason to keep Warren Jeffs himself away from children. But his picture? Unless the photo is itself pornographic, which seems unlikely, it's hard to see how the picture would harm a child.

And since polygamy also is a crime, and some of the families, though not all, are polygamous, does that mean any family photos the children managed to take with them also must be confiscated?

But give Texas credit for this much

I've yet to see a news account that remarks on the fact that we actually know far more about what CPS is doing to these children than we would in many other states. Yes, CPS was able to keep everyone away from the giant isolated compounds where the children were held in the first days after the raid – if not for the courage of the mental health professionals who felt compelled to tell the world what they saw, (see The Mental health professionals in their own words and The Iraqi dictator, the "Queen of Mean" and the Incident Commander)we'd never know how badly the children were treated. And yes, the children are out of sight now, and we are forced to take the word of CPS and the various institutions holding them that they are "doing well." And yes, virtually every document in the case is likely to be secret.

But at least the court hearings are open. Today's papers are filled with accounts of what actually happened in five courtrooms in San Angelo. In most states, we would not know even that much. Because Texas is one of the relatively few states that routinely holds open hearings in these cases.

Texas-style child welfare comes to New York

One of the saddest, cruelest parts of the mass round-up of women and children from the FLDS ranch in Texas has been the imposition of a de-facto confiscation-at-birth policy. Some of the women taken away were pregnant, and when two of them gave birth, the state immediately tried to take away the children as well.

Separating a child from a parent always risks traumatizing a child. But there may be no time when the risk is greater than during a child's first days of life, a crucial infant-parent bonding period. This can be seen in a landmark University of Florida Medical Center study I've cited often on this blog and elsewhere.

The researchers studied two groups of infants born with cocaine in their systems. One group was placed in foster care, the other with birth mothers able to care for them. After six months, the babies were tested using all the usual measures of infant development: rolling over, sitting up, reaching out. Consistently, the children placed with their birth mothers did better. For the foster children, being taken from their mothers was more toxic than the cocaine.

That doesn't mean children can simply be left with mothers who have drug problems. It does mean that helping the mother is almost always a better first choice than foster care for the child.

But now, New York City's Administration for Children's Services has adopted what amounts to a Texas-style confiscation-at-birth policy.

Under the new policy, it is a virtual certainly that if a mother has other children in foster care when she gives birth, the newborn is going straight into foster care as well. As far as I can tell, the policy is not yet on the ACS website, so I can't provide a link. But I have a copy of it, and many excellent New York City-based advocates have copies as well. The policy doesn't quite make confiscation-at-birth automatic – but it comes within a hair's breadth.

The guidelines are so draconian that the message to caseworkers is clear: "Go ahead and let this child come home if you want, but if anything goes wrong, your career is over." Even the rare caseworker ready to put her career on the line won't have time for all the extra work that would be imposed on her. And even if she could take on the work, her decision would have to be approved all the way up to the level of Borough Commissioner.

The decision was, of course, beloved by the neocons, still quite powerful in New York City political and media circles, even though neocons have been about as good for the children of New York as they have for the children of Baghdad.

"All common sense would say a parent should not be able to bring an infant home from the hospital if caseworkers have previously removed older children from the household," declares an editorial in the New York Daily News.

But there is a difference between "common sense" and conventional wisdom built on horror stories and stereotypes. Of course there are some cases where removal under these circumstances is the obvious choice. But common sense says: Look at each family individually, with no preconceptions.

It's easy to come up with scenarios where confiscation-at-birth would be a huge mistake. For instance:

--A 14-year-old girl mouths off to her mother, who is eight-months-pregnant, launching a furious tirade filled with words that could never be printed in The New York Times or even the Daily News. Dad slaps the daughter in the face. Daughter calls ACS which takes her away. Dad's never done anything like that before and feels terrible about it. One month later, Mom gives birth to a healthy baby. Even if one thinks the daughter should be in foster care, there is nothing in a scenario like that to suggest that the baby would be in danger.

--A child is taken from her mother because of substance abuse. The child is placed with grandma. Mom is now clean - and pregnant. Mom can visit when she wants and visits often. But the child has gotten used to living with grandma and doesn't want to go home. Everyone, including mom, thinks leaving things as they are is best for the child. But it doesn't follow that there is any reason to presume that the new baby should be taken as well.

Other advocates cite situations such as a child placed in foster care not because of parental behavior but because of so-called "status offenses" which might lead to the child being labeled a "person in need of supervision" or a case where the children now in foster care are on the verge of being returned home. Why traumatize a newborn in cases like these?

There also is considerable question about whether the new policy is legal in New York State. New York's highest court, the Court of Appeals, made clear its displeasure with blanket policies when it ruled in favor of plaintiffs in a successful effort to stop ACS from confiscating children of battered mothers solely because the mothers had been beaten. The judges wrote:

The plain language of the section and the legislative history supporting it establish that a blanket presumption favoring removal was never intended. The court must do more than identify the existence of a risk of serious harm. Rather, a court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. It must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interests.

What makes ACS's new policy even worse is that it is part of a disturbing pattern of incentives to frontline workers that has emerged ever since Nixzmary Brown died in January, 2006. Over and over, the message from the top has been: If you want to keep your job, take the child and run.

When a reporter for The New York Times first contacted me about this, the first thing I said was: "Since it's a lousy policy and ACS has to know that, I'm curious: What horror story case prompted it?" Sure enough, the policy comes after lots of media attention to a case in which a mother allegedly killed an infant she was allowed to keep even though an older sibling was in foster care.

But perhaps most disappointing was this comment from ACS Commissioner John Mattingly in the Times story: "…if older siblings are in foster care, and the court has affirmed that they are at substantial risk of harm, it makes very little sense to make the opposite assumption about a 6-pound baby coming into the home."

First of all, Mattingly is setting up a straw man. He suggests that the only alternative to assuming the child is in danger is assuming he isn't. There's a third option: Investigating carefully with an open mind and no assumptions either way. The status of the siblings should be treated as one risk factor, along with any others that may be present, balanced by any strengths the family may show.

But what I find particularly disappointing is this quote was the part about "…the court has affirmed…" For starters, it is quite possible for a child to be in foster care for weeks or months, based solely on the judge rubber-stamping the initial removal, without a court in fact ever deciding there really was maltreatment – the Texas cases are prominent examples.

But more important, all over the country child welfare agency chiefs routinely hide behind judges' robes – and when they do, the person I cite to rebut the claim is: John Mattingly. Because it was John Mattingly who co-authored a scathing report in 2000 blasting New York City Family Court judges for routinely rubber-stamping ACS removal requests even when the judges themselves thought the agency lacked enough evidence.

But the Times obliged ACS as it always does when the agency moves to take away more children. The Times story omitted all comment about how the new policy harms children and portrayed the issue solely as abstract concerns over civil liberties versus keeping innocent children alive.

Thus, the story ends with a comment from one of the huge private agencies that dominate foster care in New York City and live off a steady supply of foster children:

Bill Baccaglini, executive director of New York Foundling, one of several dozen foster-care agencies that will help administer the new policy, said he was "willing to be the subject of a little criticism from the civil libertarians."

"This comes out of the best of intentions," he said. "Being on this side of the business I know if we make a mistake you could lose a life."

In one sense, he's right. ACS has been making precisely this kind of mistake for nearly two-and-a-half -years now, engaging in policy-by-horror-story, issuing one draconian policy or pronouncement after another. The number of children taken from their parents over the course of a year is up by 44 percent since the last fiscal year before Nixzmary Brown died. And deaths of children "known to the system" are up sharply – something the Times keeps forgetting to put in its stories.

Other, more reliable indicators of child safety also have worsened. For details, see the table on Page 20 of our updated report on New York City child welfare, Don't Turn Back (which I'm beginning to think should be retitled Stop Turning Back). It's hard to imagine that ACS really believes one more "get tough" policy is going to reverse this trend.

UPDATE, MAY 19: Today's New York Post has a story which perfectly illustrates other problems with anything like a blanket "confiscation at birth" policy. One case involves children abused in foster care after being placed voluntarily. And let's just hope the mother whose case is discussed in the lead doesn't happen to be pregnant right now.

UPDATED MAY 28: The mental health professionals in their own words

UPDATE: In addition to links to the full statements, below, I've also posted some excerpts on this Blog, here.

Tuesday's post included excerpts from brief reports filed by eleven mental health professionals sent to the makeshift shelters in San Angelo by the State of Texas itself in the first days after the raid on the YFZ compound. The workers said that, in good conscience, they could not keep silent. The Salt Lake Tribune now has posted links to the actual reports. Those links are below, for anyone who wants to read what these professional had to say, in full, in their own words.

And remember all those excuses Texas CPS and its allies have been giving for tearing the children from their mothers? Excuses like: It's the only way to get the children to talk, the mothers might flee, and, my personal favorite (because this one is true): "It's what we always do." Faced with the possibility that they might lose custody of one family's children entirely, CPS reportedly has relented and said it will try to place the adult mother, her newborn son – and her two other very young children - together in the same foster home. If it can be done for this mother, without "endangering" the children, why not the others?

This also is the case in which CPS admits that a mother it thought was underage actually is 22. That mistake is why the mother herself was placed in foster care. A CPS lawyer explained the mistake this way: "We're not psychic. We can't just look at people and say 'You're of age, you can go.'"

But when CPS put out its claims about the number of underage mothers at the YFZ ranch, "just look[ing] at people" is precisely the method they used.

Now, here are the links to those eyewitness accounts from the mental health professionals:

· "Ashamed of being a Texan."
· "Even to be an observer was difficult."
· "Even the simplest request was discounted."
· "That is a very good question."
· "This situation was a tragedy."
· "This was a travesty."
· "I often felt helpless."
· "Vast amounts of hypocrisy."
· "It was heartwrenching."
· "Our roles bacame... confidant and a broker."
· "This incident... is not what America or Texas stands for."

The Iraqi dictator, the “Queen of Mean” and the “Incident Commander”

It's a good thing The New York Times has a brief item about this in its archives, because otherwise nobody who didn't see it would believe me. It was back in 1990, during the run up to the first Gulf War: A full-page ad in the Times under the headline: "An Open Letter to Saddam Hussein from Leona Helmsley."

What was it that placed the late hotel magnate, often described as the "Queen of Mean" at odds with the late Iraqi dictator? Saddam was holding people in Iraq against their will – and then having the effrontery to call them "guests." "I know something about how to treat guests," Helmsley declared in the ad.

I immediately thought of the ad last month, when I read some of the early news accounts about the children of Eldorado. In particular, the ones quoting Kevin Dinnin, President of Baptist Child and Family Services, who served as the "incident commander" in charge of holding more than 400 children in huge "shelters." Here are a few quotes from Commander Dinnin from news accounts of a briefing on April 11:

"We're providing a clean cool safe environment for our guests and that's what I consider them, our guests."…

"I have felt a great deal, frankly, of appreciation from the guests toward me … Particularly with the food, they've basically said 'thank you for your care' and that's very rewarding to me."

"We as an agency believe we should provide the guests whatever clothing they request. If they want black socks, I want the children to have black socks.

"Under the circumstances , these folks are as happy in their environment as they can possibly be."

I was reminded again of these comments after nine mental health professionals, who were brought to the San Angelo shelters by the State of Texas itself, spoke out because they were so appalled at the conditions they saw, and at how CPS treated the children. As noted on this blog earlier, the full stories are in the San Antonio Express News and the Salt Lake Tribune. Here are some excerpts:

From the Tribune:
Children living in crowded quarters that led to upper respiratory illnesses. Youngsters plagued with diarrhea from unhealthy foods they usually did not eat. Distressed mothers enduring widespread rudeness - such as flashlights shined in their faces as they tried to sleep.
Mental health professionals who helped care for FLDS women and children in the weeks after an April raid on the YFZ Ranch describe conditions and treatment they perceived as harsh and unnecessary.
"Never in all my life, and I am one of the older ladies, have I been so ashamed of being a Texan and seeing what and how our government agencies treat people," wrote one employee of Hill Country Community Mental Health and Mental Retardation Center in an unsigned statement.

(The statements were unsigned because CPS made the workers sign confidentiality pledges. It's not hard to see why.)

And from the Express News, which broke the story:

A few [mental health workers] described tensions quickly developing between the two groups of workers, including threats by CPS to have interfering mental health staffers arrested. …

"I have worked in Domestic Violence/Sexual Abuse programming for over 20 years and have never seen women and children treated this poorly, not to mention their civil rights being disregarded in this manner," one wrote. "It makes us all wonder how safe anyone is who has children." …
"The entire MH support staff was 'fired' the second week; we were sent home due to being 'too compassionate,'" one report stated. …
Many of [the mental health professionals] described child welfare workers as high-handed, rude or uncaring toward the mothers and overzealous in their concerns that they might escape or harm their keepers.
Two of the MHMR workers, however, reported seeing CPS workers treating mothers and children with friendliness and compassion - including one who also reported being threatened with arrest for challenging a decision to separate special needs children from their mothers after they were told earlier in the day that it would not happen.
That worker was among three who reported that CPS workers lied to the mothers; one described it as a tactic to make separating them from their children go easier. Several said the mothers were denied access to their lawyers.
One MHMR worker made a claim almost identical to one appearing on an FLDS Web site after the mothers were given a choice to return to the ranch or stay at a battered women's shelter. Most mothers went to the shelter, "because they were told they would be able to see their children if they did not return to the ranch," the worker reported. At the time the FLDS Web site claimed CPS had told the mothers they stood a better chance of seeing their children if they went to the shelter, a CPS spokesman called the claim "blatantly untrue."
Some of the MHMR workers said the crowded conditions at the shelter allowed upper respiratory infections and chicken pox to spread rapidly and many noted the shelter's other discomforts. One described it as deliberate, a form of coercion to aid the investigation: "The more uncomfortable they were the more CPS thought they would talk."

But none of this has stopped the Baptist Child and Family Services propaganda machine. With all the extra work involved in taking care of all these children, somehow the Director of Communications for BCFS still found the time to write an article for

Church Executive Magazine about the wonderful job they've been doing. Naturally, he liberally larded the story with quotes from his boss, Dinnin – like this one:

"To categorize the sheltering operations as 'highly successful' is a gross understatement," Dinnin added. "To quote Chief Colley of the Governor's Division of Emergency Management, BCFS was the 'rock star' of the San Angelo operation. We do appreciate that -- but being noted for providing 'Best Care for Children' is the highest compliment possible."

And remember, the children are "as happy in their environment as they can possibly be."

Standard operating procedure

You hear it over and over again from the authorities in Texas. When it comes to how they're treating the children of Eldorado and their families, there is nothing unusual at all. Taking children from mothers who have been accused of nothing? Standard operating procedure, they say. And so is every other harm inflicted on the children. And you know what? They're right.

The way these children have been treated is, in fact, how most children are treated most of the time by most child welfare agencies. Same with the lack of evidence against the mothers and just about everything else that has happened. And that is worth keeping in mind as you read this story from the San Antonio Express News and this one from The Salt Lake Tribune.

Look who's talking!

NCCPR has long supported allowing child welfare agencies to comment on specific cases, just as we support opening court hearings in child maltreatment cases and creating a rebuttable presumption that almost all documents in such cases are open records.

The reason for this is to overcome the “veto of silence” in cases where a family tells a journalist that a child was wrongfully removed and the agency spokesperson heaves a theatrical sigh and tells the reporter: “Oh, there’s really so much more to it and we wish we could tell you, really we do, but we just can’t – confidentiality, you know.” Too often, reporters accept this veto of silence and abandon the story – especially when they never really wanted to pursue this kind of story in the first place.

The other reason to give agencies this right is that sometimes there really is “more to it” and in those cases, it’s important that the agency be able to vindicate itself.

But I was never under any illusion that, if given this power, child welfare agencies would tell the whole truth and never shade facts or try to mislead reporters. And in Texas they’re serving up the half-truths with a heaping helping of hypocrisy on the side.

Texas is one of those states where the child welfare agency routinely hides behind “confidentiality” and refuses to comment. And yet, in the case of the Eldorado 464, the agency is blabbing away. I suppose they could claim that there is no confidentiality issue because they’re talking about a whole group of cases, not just one. But from the beginning, Texas CPS has urged the courts to treat this as one case, and, in fact, to treat the YFZ ranch as one family. They can’t have it both ways.

Furthermore, many of the children have the same last names, and their dress makes the girls and women, in particular, quite conspicuous. So whatever issues of individual privacy apply in other cases would apply here.

That doesn’t mean I want Texas CPS to stop talking. On the contrary – I’d like to see this case become a precedent. I’d like to see reporters refuse to accept the veto of silence on any other case, now that Texas CPS has shown that its claims about confidentiality are a sham.

And it would be nice if the claims from Texas CPS, which always seems to come up with a new “revelation” just when it needs one, were treated with a little more skepticism.

The most prominent example actually is one that doesn’t bother me all that much: that’s the claim about the number of women who are underage and pregnant and/or have children of their own. The claim has been widely accepted as fact, with little details, like the fact that CPS is simply guessing based on how old the mothers look to them, relegated to the fine print in many news accounts. There also is an incentive for the women to lie and say they are underage. As noted on this Blog before, in the eyes of Texas CPS if you’re a 17-year-old mother you’re considered a victim and your children can stay with you, if you’re 18 you’re an abuser and your children are consigned to foster care on their own.

But, as I said, this one doesn’t bother me as much because age isn’t the only reason to be concerned about the fate of some of the women. If a woman of any age is coerced into a “spiritual marriage” or a legal marriage, or if a woman or any age, married or not, is forced to have sex, that’s rape. That’s why some form of intervention was necessary in this case, and that’s why it’s quite possible that some of the children needed to be taken from the ranch, though not from their mothers.

But there have been other claims from CPS that are more problematic.

Remember the one about some kind of document concerning cyanide, obviously offered up to evoke images of Jonestown? Early on, a spokesman for Texas’ own Department of Public Safety told the Deseret News "Those were simply pages from a first-aid book, nothing more."

And then, just as people were wondering why, if the issue is abuse of teenage girls, younger children had to be taken, CPS conveniently tells us that 41 of the children, including some young children, at some pint in their lives, had broken bones. Only in the fine print is it noted that this determination was made without benefit of, say, x-rays.

More important, this time, two newspapers added some useful context. One was, of course, the Salt Lake Tribune:

A broken bone does not automatically indicate a child has been abused, child abuse experts said. The context of the injury is considered.
"A lot of it would depend on the age of the kid," said Julie Bradshaw, director of the Center for Safe and Healthy Families at Primary Children's Medical Center. "We would be much more concerned about broken bones in a child not yet walking than in an older child."
[Texas CPS] did not provide a breakdown of ages of children who have had broken bones.

The Tribune also noted the allegation by the FLDS that one child broke her arm while in Texas CPS custody.

And this time, a Texas newspaper did some checking as well. This is from the Austin American-Statesman:

Dr. David Teuscher, a Beaumont orthopedic surgeon, said that 41 of 464 children with a fractured bone "could have been the elementary school around the corner."
"It is really not an extremely high number," he said. "We see children who all the time who do crazy things and break their bones."

But these stories were the exceptions. When the three major broadcast networks reported the broken bones story on their evening news programs, only NBC added the context that some medical experts don’t consider the proportion of children who allegedly had broken bones to be unusually high.

In fact, in any community of 464 children and their parents, there probably are some child abusers. It may turn out that some of the broken bones were not accidents. But that doesn’t justify the wholesale confiscation of the children.

All of this comes on top of something I mentioned when this case began: the general tendency of child welfare agencies to cry wolf. As I noted then, the classic example is the rash of prosecutions over alleged mass molestation of children in day care centers in the 1980s, the most notorious being the McMartin Preschool. Almost every conviction everywhere in the country ultimately was overturned – but not until enormous harm was done to the children.

And just as one of the worst problems with the day care child abuse witch-hunt of the 1980s is that it undermined the credibility of real victims, here, too, there is a danger that Texas CPS’ broad brush and wild claims could wind up undermining the credibility of women and children at the ranch who really may have been maltreated. That, after all, is the problem with crying wolf.

So by all means, Texas CPS, keep on talking. But that doesn’t mean we have to believe every word you say.

Updated May 5: Tip of the iceberg?

Here’s, a brief item from the Salt Lake Tribune Sunday. Apparently unlike every newspaper in Texas, the Tribune did some basic checking on the Texas child welfare agency website:

A check of the Department of Family and Protective Services Web site shows some facilities now housing FLDS children have been written up for violations.
Kidz Harbor in Liverpool, for example, was cited in February for lack of supervision that allowed two children to engage in sexual activity. Also this year, Cal Farley failed to report bruises on a child and a critical injury; a staff member also ridiculed a child for not finishing a task.
Presbyterian Children's Homes & Services, which operates both foster homes and group shelters, was cited last year for foster parents who held inappropriate conversations in front of children; used discipline that included use of a belt and making a child stand on one foot in a closed closet; and failing to report a 17-year-old girl had run away.

Of course, some might argue this record really isn’t so bad; after all these are big places. But that ignores the basic fact that states do a horrible job of investigating abuse in substitute care.

Based on their own statistics, state child welfare agencies typically claim that fewer than one percent of foster children are abused in every given year. Yet one objective, well-researched study after another reports that 25 to 30 percent of foster children are abused in foster care – and those studies typically don’t cover one of the most common forms of abuse in foster care, foster children abusing each other. The record of group homes and institutions is even worse. The reason is obvious: When it comes to abuse in foster care, agencies have an enormous incentive to see no evil, hear no evil, speak no evil, and write no evil in the case file.

Texas is particularly notorious for ignoring abuse in its institutions, as a comprehensive report from the former State Comptroller makes clear.

And, of course, since the children have been taken not only from the YFZ ranch but also, in most cases, from their mothers, the record of abuse in Texas foster care should properly be compared with the number of allegations of abuse against the mothers of these children: Zero.

Yes, I know all the excuses for separating the children from their mothers. One advocate in Texas, someone who is the state’s leading proponent of the take-the-child-and-run approach and the Godsource for Texas media, has concocted a bizarre scenario in which the mothers and children might sneak back to the ranch. Never mind that the ranch probably is under surveillance and FLDS women are nothing if not conspicuous. In any event, the odds of that happening need to be compared to the odds that the children will be traumatized by the separation from their mothers and the odds of abuse in foster care itself. The sneak-back-to-the-ranch scenario is far less likely.

Then there’s the argument that the mothers worked to undermine the investigation. But it’s not as if the children are on the ranch at risk of abuse by the men at any time. It’s obvious that the courts are going to let CPS hold these children as long as it wants; so CPS can wait out any uncooperative mothers. Also, as I’ve noted before, this would not explain why even mothers of children barely over one year old have had those children taken from them. Memo to CPS: You can sometimes get an 18-mohth-old to talk, but usually you can’t get her to say much.

And finally, there’s the one about how the mothers “allowed” their children to be abused or, presumably, allowed the possibility that they might be abused years in the future. But that’s based on some remarkably arbitrary distinctions between abuser and abused. If a mother is under 18, CPS says she is herself a victim and, in fact, sometimes can live with her children. If the mother is 18 or over, CPS says she’s not a victim, she’s an abuser or at least guilty of failing to prevent abuse or failing to prevent possible future abuse, and her children suffer for it by being taken from her.

Similarly, mothers are apparently a danger to healthy children but not to sick ones. Again, according to the Salt Lake Tribune, When the last three FLDS children were released from the hospital, two of the children were punished for regaining their health by having their mother taken from them (the third is under a year old). As long as the children were in the hospital, their mother could stay with them.

In fact, the more that the allegations of Texas CPS turn out to be true, the more impossible it would be for the mothers to fight back, or even know that anything was wrong. So why punish their children in some bizarre attempt to take vengeance on their mothers?

There is a fair case to be made that some of the children were, in fact, in danger on the ranch. But more of them are in danger right now in Texas foster care.

And even the law guardians are getting restless

The harm to the children is becoming so obvious that even the “law guardians,” appointed not to actually represent children but to advocate for whatever they decide is best for them – and normally reliable rubber-stamps for any child welfare agency - are getting restless. And once again it’s the Salt Lake Tribune that has the story. According to today’s Tribune:

Vince Nowak, an Amarillo attorney, said he believes that hearing provided no justification for removing the five boys he represents from their homes. The boys, ages 12 to 15, are all healthy - and all homesick.
"They want to go home," Nowak said. "They feel they've been unjustly removed from their mothers."