In the past few years, we’ve
learned a lot of ugly truths about the criminal justice system. (By “we,” I
mean, those of us who are white and middle class. Poor people and people of
color have known all along.)
But at
least in criminal justice, every accused is entitled to a lawyer – though not
necessarily an effective one. At least in criminal justice conviction requires
proof beyond a reasonable doubt. At least in criminal justice, the records and
the trial are public. At least in criminal justice, almost everyone now admits
that racial bias is a problem, even if they disagree about how much of a
problem.
And at
least in criminal justice, a police officer sued after allegedly perjuring
himself probably wouldn’t say, “Gee, I had no idea that was unconstitutional.”
In
contrast, none of these protections is universal – and most never apply at
all – in cases where the stakes often are higher: cases in which a child
protective services agency decides to consign a child to the chaos of foster
care.
The
right to counsel, and whether hearings are open or closed, vary from state to
state. In every state, child protective services can hide almost every mistake
behind “confidentiality” laws. Homes can be searched and children can be
strip-searched – and seized – without a warrant.
The
standard of proof for a court to rubber-stamp removal of a child is only
“preponderance of the evidence,” the same standard used to determine which
insurance company pays for a fender-bender.
And there is an entire
coterie insisting that people in child welfare are so special, so superior to
the rest of us, that racial bias isn’t even an issue. Stripped of all the
blather and euphemism, their position boils down to this: Of course there used to be racism in America, and that made
African-Americans and Native Americans bad parents, so we have to take away
their children. Common sense, and abundant research, say
otherwise.
Now, we
can add one more difference: A child protective services caseworker, Marcia
Vreeken, is claiming what amounts to a constitutional right to lie. Vreeken
does not admit to lying – though a jury said she did – she merely says that
even if she did, she’s entitled to immunity from civil suit.
How the Children were Harmed
This is the latest turn in a long set of cases involving a
mother in Orange County, Calif., Deanna Fogarty-Hardwick and her two children,
Kendall and Preslie. The mother and the children, now young adults, all have
brought civil lawsuits.
The
mother won a record damage award of $4.9 million after a jury found that
Vreeken and another caseworker filed false reports and withheld evidence which
would have cleared Fogarty-Hardwick. An appellate court judge said it was clear
the judge and jury felt “the wrongful conduct was not an isolated incident.”
The threat came first: “If you
don’t submit to me, you’ll never see your kids again.”
Then the Orange County
social worker produced a document, telling her she must sign it.
Suddenly, Deanna
Fogarty-Hardwick was faced with [a choice:] Sign a paper that says you’re
a bad parent, or lose your children. Fogarty-Hardwick refused to sign it that
day in 2000 and the very worst happened: Her two daughters, then ages 6 and 9,
were placed in [a shelter] and then in foster care.
Vreeken and another social
worker went with a uniformed police officer to take Kendall’s younger sister,
who was “screaming and crying for her mother as she hid under the principal’s
desk,” … Kendall was also forcibly removed, leaving her “devastated.”…
A therapist wrote to the
agency that “Kendall … was tearful throughout the session, begging to go home.
… She doesn’t know how much longer she can cope and visibly shook while
relating this.” … [But] the social workers instead reported the children “were
doing well.”
And now, in response to
Preslie’s lawsuit, Vreeken is arguing that she is entitled to immunity because
she didn’t know that lying to a court was a violation of the family’s
constitutional rights. Sure, there’s a California statute that says
you’re not supposed to do this, Vreeken’s lawyer conceded, and well, yes, she
might have known it was immoral and unethical but, hey, that doesn’t mean it’s
also unconstitutional.
The oral arguments don’t
indicate Orange County’s official position on this, but here’s a clue: Instead
of firing Vreeken, the Orange County Department of Social Services promoted
her. As of 2011, Vreeken was training other caseworkers.
Message to the Front Lines
Consider the message this
sends to the frontlines. Caseworkers often are scapegoated if they leave a child
in her or his own home and something goes wrong. But demand that a mother
“submit” to your will, take the children and run and then lie about it, and not
only will you not be punished, you’ll get a
promotion.
Consider
as well the one key difference between this case and so many others: Ms.
Fogarty-Hardwick and family had the financial resources to wage a long fight,
and ultimately be compensated for what CPS did to them. This was one of those
rare cases where CPS reached into a white middle-class family.
What do
you really think goes on when the family is poor and non-white?
