A new report is a frightening assault on the minimal due process protections meant to stop child welfare agencies from needlessly traumatizing children.
Well, now
it looks like DePasquale has an ally – from part of the latter-day “child
saver”* wing of the child welfare research community. I'm sure they have the best of intentions. But they’ve issued a report that amounts to an
assault on due process. The extremism in the document manifests itself in many
ways, including a flow chart from the report itself. This is the lower left quadrant of the chart:
The
report was commissioned by the Center for Rural Pennsylvania, an arm of the
Pennsylvania Legislature. They hired a team affiliated with the Penn State
“Child Maltreatment Solutions Network.”
Though the report originally was intended to look only at commercial
sexual exploitation of children, the authors kept expanding their own mandate,
first to all sexual abuse cases and ultimately to broad, sweeping conclusions
about the entire system – even though the case sample they examined involved
only sexual abuse cases.
Like
DePasquale, the report’s authors express alarm at what they imply is an
unusually high rate at which some blacklist decisions are overturned. They’re also alarmed by the fact that, if a
report turns out to be false, the state is not allowed to keep the report forever
and use it against a family anyway.
The report acknowledges that
blacklist decisions are overturned, by the authors’ own estimate, only 19
percent of the time. That’s because most
of those accused lack the knowledge and/or the resources or both to do anything
but lodge a written appeal. That appeal
goes to the same division of the same state agency that runs the state’s child
abuse hotline. At that stage, in 2018
the number of times a child welfare agency decision was overturned was exactly
zero. Among those who do have the resources and take it to a real hearing
before an independent tribunal, the Board of Hearings and Appeals, about 70
percent are overturned. (DePasquale
mistakenly claimed it was 96 percent.)
In fact,
the 70 percent rate-of-reversal is roughly in keeping with at least three other
states. It also makes perfect sense, given the sloppy, one-sided nature of many
child abuse investigations. The Penn
State report itself devotes page after page to condemning the poor quality of
these investigations. (DePasquale raised similar concerns.)
The report even admits at one point
that “the rate at which cases indicated by [county children and youth services
agencies] are overturned on appeal is high, which may both affect and reflect the concerns raised in this
research pertaining to the quality, scope, and documentation of investigations.”
[Emphasis added.]
Yet the
Penn State report warns darkly that if decisions by county CYS agencies “are
frequently overturned on appeal, this could provide a disincentive to making a
finding of indicated on a CYS case.”
This reflects a remarkably dim view of frontline child abuse
investigators. It suggests they would rather let child abusers run free than
actually work improve their investigations.
Taking out the trash
Under
Pennsylvania law, if the Board of Hearings and Appeals or the courts overturn a
listing in the registry, or if the county CYS agency finds it unfounded in the
first place, the state must expunge the record so the false allegation can’t be
used against a family in the future.
But the
presumption of guilt in child welfare is so strong that many jurisdictions want
to keep false reports on the theory that, if there are enough of them, then
they can’t be false. According to Marc
Cherna who runs the Allegheny County system, the one that leads the nation in weaponizing
false allegations and other junk information against families: “A lot of
times, where there’s smoke there’s fire.”
This is an
open invitation for anyone who wants to harass a family – an ex-spouse, an
angry neighbor, a school district that wants to collect
lunch money, or even an
upset dentist – to simply call in more and more reports. But also, in child
welfare, where there’s smoke, there’s often just an overwhelmed inexperienced
caseworker blowing smoke.
But in the
atmosphere of hysteria that has pervaded Pennsylvania since the scandal over
former Penn State football coach, former
foster parent and former group home operator Jerry Sandusky, the state now
gives permission to counties to keep junk data about families forever. According to the authors of the Penn State
report, even that is not enough. They want to require it, and they want the
state to keep all of its junk data as well.
Their
excuse for this recommendation is instructive, but not in the way they had in
mind. First they write that
expungement
…may result in wrongly-accused persons being repeatedly subjected to investigation for allegations that were already investigated when the investigation has been expunged and the exoneration details are no longer available.
Aside from
the fact that no one could read this report and believe that the authors give a
damn about “wrongly-accused persons” (as is discussed below, it’s not even
clear they think such persons exist) they contradict this argument in the very
next sentence:
At the same time, expungement may also allow serial perpetrators of child sexual abuse to go undetected. That is, expungement of unfounded allegations disallows consideration of the accumulation of allegations, patterns, and reports that are often critical to exposing serial perpetrators of child sexual abuse.
In other
words, “Where there’s smoke …” If they
believe their own second sentence then there’s no way a pile of unfounded
reports clears anyone – it just makes them more suspect.
Indeed,
this mindset is confirmed, accidentally, by a spokeswoman for the state
Department of Human Services – which loves the prospect of being able to keep
files on the innocent forever. She told the Daily Item:
“Prior abuse reports, regardless of substantiation, are a strong indicator of risk of future abuse … Counties should be aware of all prior incidents, including unfounded or invalid reports, when investigating a new report.”
And, of
course there is a simple way to solve the problem of someone who is innocent
not having a record of a false allegation: Send a copy of the record, minus
anything that genuinely violates privacy, to the accused, so they can keep it and show it to the
caseworker the next time that disgruntled neighbor, ex-spouse, dentist or
school district demanding lunch money files a false report, or the next time a
well-meaning reporter is simply mistaken.
The
report’s recommendation in this area appears under the header “Stop deleting
data.” But a key principle in any use of
data is “garbage in, garbage out.”
Expunging false reports is not deleting data. It’s taking out the trash.
Another assault on due process
You can’t
convict someone of murdering a child without proof beyond a reasonable
doubt. But in most states you can tear a
child from a loving home and consign her or him to the chaos of foster care,
indefinitely, using the lowest standard of proof in American jurisprudence –
“preponderance of the evidence.” That means you were able to convince a judge
that it is slightly more likely than not that the allegations are true and
foster care is necessary. It’s the same
standard used to decide which insurance company pays for a fender-bender.
That’s part
of the reason it’s so easy to do so much harm to children. First, confuse family poverty with neglect, then take
away the child (in every state workers can do that on their own authority or
ask law enforcement to do it for them). Then, after-the-fact, go to court for a
hearing – usually a secret hearing - where the family probably has either no
lawyer or someone they just met five minutes before the hearing. The state has
had plenty of time to prepare its case – and it barely has to “prove” it at
all.
In theory,
Pennsylvania is a little different. In
Pennsylvania, CYS agencies eventually – though not immediately - have to meet
the middle standard of proof, known as “clear and convincing.” That’s still lower
than “beyond a reasonable doubt” but, theoretically, higher than “preponderance
of the evidence.”
In
contrast, all it takes to blacklist the accused is a caseworker’s conclusion –
with no hearing or impartial fact finding beforehand – using the preponderance
standard.
So what
does the Penn State report say? While never explicitly calling for lowering the
standard for holding a child in foster care, it’s clear where the authors come
down. They write:
This creates a scenario in which it is known that a child is at risk of harm but no action to protect the child can be taken without the consent of the parent, who may themselves be the identified perpetrator.
But that is inaccurate.
First of
all, in Pennsylvania a child can, in fact, be in foster care for up to 13 days
or more before this higher standard ever kicks in. That happens – in theory --
at a later hearing to determine if the child needs to stay in foster care.
But more important, the whole point
of a court hearing is to find out if the child actually is “at risk of harm”
and whether the parent is, in fact, the perpetrator. If a caseworker’s guess
based on preponderance of the evidence were enough we could just abolish the
entire court system.
The Penn State report’s framing
also flunks the balance of harms test. It fails to acknowledge the enormous harm of intervention itself. It ignores the
evidence that in typical cases children do better in their own homes even
than comparably-maltreated children placed in foster care. It ignores the high
rates of abuse in foster care itself.
One should, indeed, have clear and convincing evidence before putting a
child at risk harm by needless placement in foster care.
And finally: The “clear and
convincing” standard does not stop Pennsylvania from taking away children at a
rate above the national average. And it doesn’t stop Philadelphia from taking
away children at the highest rate among America’s largest cities.
So yes, there’s a problem with the
“clear and convincing” standard in Pennsylvania law: Judges keep ignoring it.
The bias that permeates the report
I noted
above that it’s not clear the authors believe there’s really any such thing as
a false report. Indeed, the overall
message conveyed in the report is: If you’re accused you’re guilty until proven
innocent – and no one is really
innocent.
That’s based on, among other
things, the flow chart I mentioned at the top of this post. The flow chart is misleading on one count and
flat wrong on another. Take another
look:
It is
misleading in that it suggests, as does the report narrative, that those
accused of child abuse have a wondrous array of options before them and chance
after chance to prove their innocence.
In fact,
that’s only true if they’re rich, can hire great lawyers, and convince court
after court to hear their appeals. In
the real world, there’s the BHA – and often, not even that. (And remember, in most neglect cases there is
no right to appeal at all.)
The error
of fact appears over and over in the lower left quadrant of the chart. That’s
where, time after time after time the report lists a tribunal’s options as
either “ruling in favor of CYS” or
“ruling in favor of perpetrator.” [Emphasis
in original.]
The
problem, of course, is that if the tribunal says the allegation was false, then
the accused is not a perpetrator. To claim that ruling that the state could not
meet the bare minimum required to “indicate” an abuse allegation equals “ruling
in favor of perpetrator” is like
saying “the jury found the murderer not
guilty.”
The fact
that a document purporting to meet academic standards includes this mistake,
over and over and over, and no one apparently noticed, speaks volumes about the
mindset of the research team. Indeed, in
reading the report, I kept thinking of something said by a prosecutor who had
falsely accused large numbers of parents as part of the mass molestation
hysteria in the 1980s. Said
the prosecutor: “I am sick to death of things like the presumption of
innocence.”
Beyond the flow chart
The whole
report has a tone reminiscent of the worst excesses of that era, the time
of cases like the McMartin
Preschool, allegations of mass child abuse by Satanic cults, and so on.
Particularly
frightening is a section concerning non-offending parents in cases of alleged
sexual abuse, including parents who were unaware of any alleged abuse. The
report contends that any such parent (usually the mother) who does not
immediately believe the allegations, turn against the alleged offender (usually
the father) and do whatever is demanded by child protective services is herself
a child abuser.
According to the report, agreeing
to keep the alleged abuser away while the case is being investigated is not
enough. In classic 1984 style, you must believe the charges, and the belief must be
immediate, absolute and unwavering.
Because, apparently, those same caseworkers who do those slipshod
investigations can’t ever be wrong when they accuse someone of sexual abuse.
I know of
no studies documenting how many families are destroyed when a parent either
accepted these demands or rejected them – and it later turned out the
allegation was false. But having been
around during the McMartin-era hysteria I can say that, anecdotally, such cases
arose over and over. Children were not
only taken from both parents, but loving relatives were denied custody if they
did not convince authorities that they believed the charges.
The
justification for this, according to the report: If a parent is not an instant
true believer ‘it is possible” that parent may “[pressure] the child to recant
or deny the abuse allegations.”
But, to put
it as they might, it could be that this is only to be expected when the
organization doing the research was born out of a quest to burnish an
institution’s image.
The Penn
State Child Maltreatment Solutions Network should really be called the Penn
State Penance Institute.
The Network
was a public relations tactic; part of Penn State’s effort to rehabilitate its
image after the Sandusky scandal. But
for the p.r. strategy to work, Penn State has to show that it’s tougher than
anyone on child abuse. That leaves little room for nuance or for recognizing
the need to balance the harm that may have been committed by the alleged perpetrator against the harm
done to children by needless intervention.
There is
plenty in the Penn State report to suggest that the authors have a genuine
passion for easing the plight of abused children. But there is nothing in it to suggest the ability
to keep biases in check that is needed for reliable scholarship.
*-In the 19th Century, advocates for tearing
apart the families of impoverished immigrants proudly called themselves “child
savers.” They left a legacy of
bigotry that permeates today’s system.
