NCCPR news and commentary round-up, week ending February 26, 2025

Before the news: A big virtual event next week. You can register here to learn about “The Protective Power of Cash” at a virtual teach-in March 3 from 1:00 pm to 2:30 pm ET. 

In the news: 

● There’s a new issue of the Family Justice Journal out – filled with articles about “The Practice of Connection.” I particularly want to call attention to the Foreword on Page 8. It’s by Sandy Santana, executive director of Children’s Rights.  This remarkable essay makes clear that CR is backing up its recent change in rhetoric with action. I have a blog post about the transformation. 

Other articles in Family Justice Journal include: 

● Joyce McMillan introduces JMAC for Families’ curriculum to teach mandated reporters how to be mandated supporters. There’s more about it here. 

● In an article about “The False Gods of Social Change” Kevin Campbell, Cormac Russell and Elizabeth Wendell write: 

In practice, “service users” receiving aid from the government and charities exchange freedoms of self-determination, choice, participation, and control for the promise of subsistence, not equity, health, or even dignity. No freedom is considered too precious to take from a “service user” by a social, health, mental health, or justice system. The reality is people lose their

children, reproductive autonomy, sovereign claims to identity, personal liberty, associations, and even freedoms of movement in return for “services” to meet their “needs.”

In other news:

● When some Maine lawmakers recently learned that their mandatory child abuse reporting law has a clause that, under some circumstances, prohibits doctors from thinking, they were outraged – not because such an idiotic law exists but because, in their view, it is not being sufficiently enforced. I have a blog post about it. 

● In the United States there’s been a lot more talk lately about child welfare’s history of trying to eradicate Native America.  The talk has helped.  But in Canada, government is putting some money where its mouth is.  The Imprint reports that for First Nations Canadians: 

Those taken as children between 1991 and 2022 from “reserves” and the northwestern territory of Yukon are eligible to submit claims, as are their caregiving parents and grandparents. [Emphasis added, in case anyone thinks these are just crimes of the distant past.] … 

“While no amount of money can make up for the harms done by Canada’s racist child welfare system, March 10 will be a historic turning point to address these past wrongs,” National Chief Woodhouse Nepinak stated. “The $23 billion compensation settlement is an important recognition of the heroic representative plaintiffs and everyone who took part in the long process of negotiations that brought us to this point.” … 

Yet as the claims process moves forward, a far larger and more systemic reform sought on behalf of Indigenous children and families remains stalled. 

● And in Montana, The Daily Montanan reports that a bill to make permanent that state’s own version of the Indian Child Welfare Act, which its sponsor says is stronger than the federal law, has received preliminary approval by the State Senate. 

● Writing in CTMirror, a bioethicist, an adoptee rights advocate and a pediatrician make the case against so-called “baby boxes” where mothers can abandon their infants. They write: 

There is a misperception that these mothers do not wish to be with their children – and only need a box to “drop them off.” However nearly all women who surrender a child want to keep them, yet feel they may have no other option. Relinquishment is associated with unrelenting grief – and finances are the main reason relinquishment in 80% of the cases within the U.S. Even enough money to cover the cost of a car seat can make the difference for some families so they could keep their child. 

They also note serious problems with the safety of baby boxes, and they offer an intriguing alternative.

● Maryland is among the states considering enacting a “Family Miranda” law. Such laws do not give families any additional rights – they just inform them of the rights they already have. So you can see why family policing agencies don’t like them. The Maryland law was the subject of a remarkable hearing last week.  I have a blog post with a link to the full hearing, and a reprint of the testimony of Prof. Shanta Trivedi of the University of Baltimore. 

● On LinkedIn Pulse Melody Webb of Mother’s Outreach Network writes about the changes urgently needed in Washington DC’s family policing system.  DC is one of the places where families are not even guaranteed a lawyer when up against the family police.

In this week’s edition of The Horror Stories go in All Directions: 

● I’m thinking the headline on this Wichita Eagle story is enough: 

‘Please do not make us get in the boxes’: Court doc details death of adopted girl buried in Rose Hill. 

A transformation at Children’s Rights

There's lots of good stuff in the latest issue of the Family Justice Journal
But in particular, don't miss the Foreword on Page 8, 

A few years ago, when the group’s rhetoric changed, I was skeptical about whether there’d be a change in substance.  I was wrong. 

For nearly 30 years no group has been in a better position to make real change for the better in “child welfare” than the group known as “Children’s Rights.”  But for much of the group’s history, they squandered the opportunity.   

In state after state, their media-savvy founder and first executive director, Marcia Lowy, became the “Godsource” for reporters – that one source treated reverentially in every story -- as the group brought what I came to call McLawsuits, essentially the same suit each time.  For reasons discussed in an NCCPR publication called “The Children Wronged by Children’s Rights” these McLawsuits almost never made systems better and sometimes made them worse. 

Then Lowry had some sort of falling out with her Board of Directors. She left to form “A Better Childhood,” another organization that churns out the same sort of McLawsuits.  A few years after Lowry was succeeded at CR by Sandy Santana, the rhetoric changed, so did the group’s public policy positions – they even called for repeal of the so-called Adoption and Safe Families Act.  But would the change in outlook be backed by a change in the group’s strategy and litigation?  

The first sign that there would, in fact, be such a change came one year ago when, on behalf of the Minneapolis NAACP, Children’s Rights filed a federal civil rights complaint against the family policing systems in the two largest counties in Minnesota. The complaint deals head-on with needless investigation and surveillance, wrongful removal and racism in these systems. 

And now, Santana has presented a comprehensive agenda for a change in direction.  It comes in the form of the foreword for the latest issue of the Family Justice Journal (See Page 8.) I hope everyone will read it in full. 

Santana begins by telling his own remarkable personal story. Then he forthrightly acknowledges that the approach the organization had taken for decades had been wrong – and things are going to be different.  He writes: 

In the sometimes charged and polarized debate between advocates of parents’ rights and advocates of children’s rights, our organization historically leaned in favor of intervention to “protect” the child. In the years immediately following the passage of ASFA, perhaps blinded by our conviction that no child should grow up with the state as a parent, our child welfare reform litigation campaigns supported the enforcement of that law’s strict timelines for the termination of parental rights. As we know, that law created a new category of legal orphans, intensified the regulation and forced separation of Black communities and families, prioritized adoption over reunification, and does not align with our understanding of treatment, recovery, trauma, and the critical importance of t the parent-child bond. 

Over the past decade, under new leadership, we have reflected deeply on how the impact litigation cases we brought on behalf of kids in state custody and the reforms they delivered, did not always support the preservation of families – particularly Black families. Through this process, we listened closely to the voices of survivors, who not only described the deep trauma they experienced within the system but from being separated from their parents and

uprooted from their communities. We also heard from mothers who endured the terror of constant surveillance and the ineffable pain of losing their children. 

Those conversations profoundly transformed the organization’s long-standing conception of children’s rights. They made it clear that children do not exist in a bubble of autonomous rights disconnected from their families, communities, and cultures. 

The essay lists a series of concrete actions CR has taken or will take to back up these words, including: 

We are partnering with the Family Justice Law Center to explore constitutional challenges to warrantless home entries, invasive strip searches of children, and “emergency

removals,” often carried out in non-exigent circumstances without parental consent or due process protections. … 

We are co-leading with JMACforFamilies a collaborative of advocates, mandated reporters, legal professionals, researchers and lived experts to develop new mandated reporting policies and practices in New York State to prevent unnecessary family surveillance and separation. … 

We are exploring impact litigation to give teeth to the “reasonable efforts”* standard. 

And, perhaps most promising: 

In states where we have custodial consent decrees in place, we are using our leverage to press for front-end policy and practice changes that lead to more successful reunifications, increased extended family kinship placements without terminating parental rights, and driving toward a radically smaller foster system … 

That suggests some hope for the children of Michigan where the old leadership of CR, under Marcia Lowry, negotiated a particularly awful decree. 

Lowry herself, however, continues to do damage. A Better Childhood still does the same old harm in the same old way. 

As for that publication, “The Children Wronged By ‘Children’s Rights,’” The full name is “‘The Children Wronged by Children’s Rights’ (and ‘A Better Childhood’ too’”), it’s been updated to put the Children’s Rights criticism in the past tense.  I hope it always stays that way.

*Federal law requires family policing systems, a more accurate term than “child welfare” systems to make “reasonable efforts” to keep families together.  The law is routinely ignored.

Child welfare in Maine: Some lawmakers want to strengthen a law that prohibits doctors from thinking.

It’s taken more than half a century but slowly, some people in family policing (a more accurate term than “child welfare”) are realizing that mandatory child abuse reporting laws were a huge mistake.  These laws force many professionals who deal with children, and, in some states, everyone, to report their slightest suspicion of whatever state law considers child abuse or neglect. 

The research is clear: Mandatory reporting has backfired. It drives families away from seeking help. They fear that if they confide that they are under stress or take their child to the ER with a broken bone or even a bruise it might be confused with child abuse or neglect -- and they’ll be turned in to the family police who will inflict a traumatic investigation and, maybe, take the children. 

Mandatory reporting also deluges the system with so many false reports that workers have less time to find the relatively few children in real danger. In short, mandatory reporting makes all children less safe. 

One key solution is to replace mandatory reporting with permissive reporting – in which professionals exercise their professional judgment concerning when to report and when not to report.  Sadly, no state has yet gone that far.  Instead, there have been small tentative steps: A commission tasked with studying how to expand mandatory reporting in Massachusetts rebelled against its own chair and refused.  A commission in Colorado actually recommended removing one category of mandated reporter -- advocates for survivors of domestic violence – and narrowing the definition of “neglect.” A bill has been introduced to implement those recommendations. By the standards of family policing, those acts are revolutionary. 

But, of course, there also are states that haven’t gotten the memo.  In Washington State, some lawmakers, and media, remain obsessed with allowing the family police to, in effect, barge into the confessional, by forcing clergy to be mandated reporters. 

And then there’s Maine, where some clueless politicians and advocates have spent more than a decade undoing reforms that once made the state a national leader in getting child welfare right. 

Among the foolish changes was a clause in the state’s mandatory reporting law that takes away what little professional judgment medical professionals are allowed to exercise in certain cases of alleged physical abuse. 

At issue are what some child abuse pediatricians – you know, the ones who see child abuse where it is and, too often, where it isn’t – are fond of calling “sentinel injuries.” Definitions of sentinel injuries vary, but while the age of the child and location of the injury are factors, severity often is not.

Backers of this theory cite research claiming that children found to be abused are more likely to have had such injuries at some point than children who are not found to be abused.  But that is not the same as saying every child or even most children with a “sentinel injury” got that injury because of abuse or is likely to be abused in the future. 

I discussed the research and its limits in detail in this Blog post. That post focused on a paper by two doctors who actually told their colleagues that when there is a sentinel injury they should “think less, screen more.” 

But even the most fanatical devotees of thinking less argue for more medical tests and consultation with specialists – such as child abuse pediatricians, of course.  That alone can bring down a world of trauma on children and their families. But at least they’re not advocating writing an anti-thinking clause into state law. 

But Maine already has such a clause – thanks to the same governor who began the dismantling of the state’s reforms, the state’s former “Trump before Trump” governor, Paul LePage.  

Since 2013 Maine’s mandatory reporting law demands that in any case where there is a so-called “sentinel injury,” medical professionals must suspend all professional judgment, do no thinking at all, and automatically report the family to Maine’s family police agency, whether the medical professionals think the cause of the injury is child abuse or not.  Then, caseworkers who, of course, have far less medical expertise than medical professionals, launch their investigation and make the call as to whether it’s child abuse. 

During a legislative committee meeting earlier this month, some lawmakers heard about this and were appalled.  But alas, they weren’t appalled that Maine has a clause in state law that is almost literally brain-less.  No, they were appalled that it’s not being enforced. They were shocked that no one has made an example of some doctor somewhere who dared to exercise what they thought was their right, indeed their duty to think, and decided not to report a child with a “sentinel injury” because, in that doctor’s professional judgment, the injury was not caused by child abuse. 

Indeed, debate at the committee meeting appeared to revolve almost entirely around whether it was
better to educate doctors that they have no right to think in these cases or punish them for thinking. The headline on one news account reads: “Gap in Maine’s mandated reporter law raises questions about accountability for mandated reports.”  

Much of the impetus for making thinking more difficult seems to come from Mark Moran, a social worker who chairs Maine’s Child Death and Serious Injury Review Panel. In 2021, the panel devoted a huge section of its annual report to “sentinel injuries.” But the panel’s credibility might be viewed as compromised by the report’s very next section. That section dealt, entirely uncritically, with “shaken baby syndrome” – only the report prefers another term.  Perhaps because Shaken Baby Syndrome has been called into question so often one court has called it “junk science,” the Maine committee has adopted the new preferred euphemism: abusive head trauma.  

By 2023, the report was no longer talking about shaken baby syndrome – by any name – but it still was talking up sentinel injuries.  But even that report said in such cases the child should receive “a careful, multidisciplinary evaluation” – which is not the same thing as a knee-jerk call to the family police. 

But Moran certainly isn’t against the law.  According to the Maine Morning Star: 

“We’re looking to identify what the problem is, fix the problem and put the family back together,” Moran said.

I’m sure he means it. As with so many in and around family policing, I don’t doubt that his motivation is to save lives. 

But scaring families away from going to doctors and subjecting children who are taken anyway to traumatic investigations and, perhaps, hauling them off to foster care doesn’t seem like the best way to identify a medical problem. 

As for the whole punish-or-educate dilemma, Moran says: Why choose?  From the story: 

Moran said the panel is more interested in changing people’s behavior than handing out punishments, but it doesn’t have to be one or the other; it could be both. 

He may as well have added: But for God’s sake, medical professionals, stop that damn thinking!

Maine legislators need to think twice about a law that doesn't let doctors think even once.

Prof. Shanta Trivedi on a bill that “puts marginalized families on an equal footing with their more privileged counterparts.”

Witnesses testify in favor of the Maryland "Know Before They Knock" bill.
You can watch the entire video here.

If you don’t know your rights, you don’t have your rights. When impoverished families hear that pounding at the door in the middle of the night from a worker for child protective services, often they don’t know their rights.  

A lot of CPS agencies want to keep it that way.  But five states have passed what are commonly known as “family Miranda laws,” requiring the agency to tell families their rights – including their right to consult a lawyer.  In Maryland, a bill to do that, HB 223, is called “Know Before They Knock."  It was the subject of a hearing before the Maryland House of Representatives Judiciary Committee last week.  It’s well worth watching the hearing, available here. 

Below, I’ve reprinted the testimony of one of the many witnesses speaking in favor of the bill. 

Prof. Shanta Trivedi teaches and writes about the child welfare system at the University of Baltimore School of Law. She is the faculty director of the Meyerhoff Center for Families Children and the Courts. She has also represented parents who have had their children removed without knowing their rights. [Emphasis in original]: 

Imagine CPS knocks on your door in the middle of the night.  They say that they’re going to search your home. They will search your medicine cabinet, your bedroom.  They’ll ask questions about your romantic partners, about how many glasses of wine you have each week.  They’ll ask to speak to your children without you being present and to inspect their naked bodies. How would you respond? Welcome them in? I doubt that. I know that I would tell them come back with a warrant, and I would call a lawyer immediately, because I know my rights. You know your rights.  But, of course, not everyone does. 

This bill simply puts marginalized families on equal footing with their more privileged counterparts.   This bill would establish that constitutional protections apply in child welfare investigations and would allow parents to make informed decisions throughout the process. 

To date, Connecticut, Texas, Florida, Montana and Arizona have all passed these laws and New York and Delaware have introduced similar legislation.  The question is whether we want to join those states in respecting parental rights for ALL parents or just for the privileged few. 

Rather than making children less safe, states that have passed similar laws have found that they keep children safer because transparency from the agency encourages families to be more forthcoming.   Further, the law already provides for law enforcement and DSS to be able to enter in emergency situations.  This bill would not change this. 

I know that opponents do not want DSS to be perceived as a policing agency but unfortunately, many parents already feel this way because of the intrusive nature of investigations and the threat that their children can be taken. Regardless of what the perception is, the fact remains that removing one’s child directly impacts both the parent and child’s rights to family integrity and the parent’s right to care, custody and control of their children.  This is true regardless of whether the police do it or if DSS does it.  Whether or not we advise parents of how to protect those rights, they still exist.  

The goal of the child welfare system is to protect children, and research shows that most children do best with their families. Because I believe this bill is an important step toward protecting family integrity. I urge you to support HB223.

P.S. I just caught up with Sunday's edition of Last Week Tonight with John Oliver. In the course of discussing immigration raids he said something that could apply to any government agency that pounds on people's doors in the middle of the night and demands entry:

NCCPR news and commentary round-up, week ending Feb. 18, 2025

● Responding to reporting from WXIA-TV, the family police agency in Georgia is taking steps to curb the abuses of “child abuse pediatricians” – steps they should have taken all along, such as allowing families to get second opinions. 

On this blog: deep dives into two bad bills: 

● In New Hampshire: drenched in trendy psychobabble, legislation proposes to fight trauma with trauma. 

● If you are a Black child in Indiana, odds are four in five the family police agency will investigate you and your family. Now some lawmakers want to make it even easier to take you away and keep you away forever.  One way they propose to do it: Just let foster parents march into court as “intervenors” and file their own petitions to terminate the rights of children to live with their own families. 

● Tennessee already allows this.  WZTV has the story of a foster parent who tried it – then realized she’d been misled by the family police agency, changed her mind, and worked to reunite her foster children with their own mother. 

● Not all the laws are bad, of course. State law in Colorado declares that “In order to heal from the generational trauma, we must confront the past and shed light on the hidden cruelty.’’  The cruelty in question: Child welfare’s attempt to eradicate Native America. So the state created the Federal Indian Boarding School Research Program.  The Imprint discussed the work with Colorado’s State Archeologist.

● New York University School of Law profiles the role of NYU’s pioneering Family Defense Clinic in a big recent victory: an appellate court decision barring the city’s family police agency from harassing domestic violence survivors and their children.   

In this week’s edition of The Horror Stories go in All Directions: 

● Remember that story in last week’s round-up about the horrifying death of a child from a Texas residential treatment center? This follow-up from the Texas Tribune should surprise exactly no one: 

A Greenville foster care facility linked to the death of an 11-year-old last November had a history of sexual misconduct and physical abuse, including organizing fights between children and restraining one boy so severely he was hospitalized, according to a federal report filed Tuesday.

● From Courthouse News Service: 

The New York Court of Appeals ruled in favor of a former foster child Tuesday, finding that Cayuga County was negligent in failing to prevent rampant sexual and physical abuse in her foster home.

Undermining Black families in Indiana: It's already bad, proposed legislation would make everything even worse

Indiana State Capitol - Photo by Warren LeMay

● If you are a Black child in Indiana, odds are four in five the family police WILL investigate you and your family. A shockingly high proportion of those investigations lead to foster care.  Now some lawmakers want to make it even easier to take you away and keep you away forever. 

● Among other things, they want to let those nice white, middle-class foster parents go to court on their own and try to take you and keep you forever – or at least as long as they feel like it. 

The Context:

The family policing system in Indiana has a number of distinctions – all of them bad.  

● Nationwide, 37% of children will be forced to endure the trauma of a child abuse investigation before they turn 18.  In Indiana, it’s 58%.  Nationwide, 53% of Black children will have to endure this trauma. In Indiana, it’s 79% - the highest rate in America. 

● It doesn’t stop with the investigation.  Eighteen percent of Black Indiana children will, at some point, be torn from everyone they know and love and consigned to the chaos of foster care.  That ties Indiana with three other states for the highest rate in America. 

● In any given year, among all children, Indiana takes them from their homes at a rate 66% above the national average, even when rates of family poverty are factored in. 

● When going up against this family police juggernaut (a more accurate term than “child welfare system”) families often are almost literally defense-less – because their lawyers often have so little time and so many clients. Many Indiana counties want to keep it that way. One in five actually turns down federal funds to improve representation for parents and also for children. One county court administrator explained that county’s refusal this way: “[T]he system we have works well.” 

None of this is because Indiana is a cesspool of depravity with vastly more child abuse than the national average.  In fact in Indiana in 2022, 85% of the time, when children were thrown into foster care their parents were not even accused of physical or sexual abuse. Forty percent of the time, there wasn’t even an allegation of drug abuse.

Far more common are cases in which family poverty is confused with neglect.  Indeed, in 17% of cases, Indiana family police admit they took the children because their families lacked adequate housing.

And now, some Indiana lawmakers want to make everything worse, with a bill that would move the family policing system in Indiana even closer to becoming the ultimate middle-class entitlement: Step right up and take a poor person’s child for your very own!

The bill:

The bill further stacks the deck against families in so many ways that just a summary listing all its proposed changes in current law – I count at least 40 of them -- runs to two-and-a-half single-spaced pages. Every one of those changes either makes it easier to take children away, harder to return them home or both.

To understand what may be the worst of these provisions, let’s leave the world of the poor – which is, of course, almost the entire world of family policing, and consider a hypothetical from the world of the rich:

Suppose in September you send your son off to boarding school. But when Christmas vacation comes around, he does not return. Instead, you got a letter from a lawyer for your son’s gym coach.

The lawyer explains that your son and the coach have “bonded.” An expert on “attachment theory” they’ve hired concludes it wouldn’t be in your son's "best interests" to return home. Instead, the coach is going to court to adopt your child – because he now has every bit as much right to your child as you do.

Ridiculous right? Well, ridiculous if you’re rich.  But in at least 15 states, if you are poor, and that poverty leads to your child being taken, and the middle-class foster parents simply decide one day that your child would be better off with them, they can march into court, bypass even the family police agency, file their own petition to terminate your child’s right to live with you (a more accurate term than termination of parental rights) and adopt your child.  In Indiana, at least one lawyer already has found an entirely legal method to work the system in a similar way. This bill would would open the floodgates.

In some states, allowing foster parents who are likely to be white and middle class to be “intervenors,” declare themselves better parents for children who are less likely to be either of those things and then try to persuade a court has created an entire cottage industry – as eplained in this story from ProPublica and The New Yorker:

… It’s not acceptable in most family courts to explicitly argue that, if you have more material advantages to provide a child, you should get to adopt him or her. Outside the courtroom, though, intervenors are sometimes less discreet.

During a 2021 case meeting, according to a specialist who took notes, a foster parent and [attorney Tim] Eirich client said, of the prospect of reuniting a baby boy with his biological family, “He’s used to being raised by a maternal figure who stays home. We have 1.5 acres for him to run around, and they have an apartment.” Another foster parent and Eirich client told me that reuniting a baby girl with her birth mother would mean transitioning her from a “personalized nanny” to a “day care center with, you know, 50 kids running around, and sleeping on a little cot.” …

Oh, and if you want to see how much worse it can get, check out the follow-up story.

These stories focus largely on Colorado – where lawmakers have now had the decency to curb, though not to abolish, the right of foster parents to barge in this way.  But the Indiana bill would move in the opposite direction, making it even easier. 

That would come on top of an existing loophole in Indiana law.  The lawfirm of adoption attorney Grant Kirsh is the proud recipient of an Angels in Adoption award from the Congressional Coalition on Adoption Institute.  In one of his many YouTube videos, Kirsh points out, twice for emphasis, that in Indiana “you can file a petition for adoption for anybody at any time!”

Of course it’s more likely to work in some cases than in others. As ProPublica explained:

Kirsh tells [foster parents] that, should the state’s child services agency move to return a child in their care to the child’s birth family, they can simply serve a notice of adoption, which the birth family will have only 15 days to contest. If there is no response in that time frame, the birth family loses the right to challenge the adoption.

“It’s nuts,” Andrea Marsh, a family court lawyer in Indianapolis, said, calling the process “similar to intervention, but the nuclear option.” One of her recent clients, a birth mother in Indianapolis, was trying to follow her court-ordered treatment plan when the suburban foster parents who were caring for her child filed for adoption in their home county. (Court-shopping is a strategy that Indiana adoption attorneys use to circumvent a court that is still trying to reunify the birth family.) The mother failed to reply by the deadline and, when the adoption of her child was finalized, neither she nor the local child services office could do anything about it.

The Indiana bill would make it all even worse by setting up a legally sanctioned system of “intervenors” who could barge in sooner.  They would be full parties to the case at every stage, and they could file their own petitions to terminate children’s rights to their parents.  All this in what some measures suggest may already be the most racially biased family policing system in America.*

Excuses for this legislation

The excuses for compounding the racial and class bias that permeate Indiana family policing are depressingly predictable.

First, invoke horror stories:

So at a hearing on the bill, a foster parent spoke of how, if only she could have brought her own termination action, perhaps her foster child would not have been returned to the birth father who tortured and murdered him.

But as always, the horror stories go in all directions.

● If this bill becomes law, will there be more cases like that of 22-month-old Nova Bryant of Clay County? She was taken from her parents only to die in foster care. There appears to have been no allegation that the parents abused Nova, only that they couldn’t cope with her special needs.

● If this bill becomes law, will there be more children like Dakota Levi Stevens of Porter County?  She too died in foster care, her foster mother was convicted of reckless homicide. Family members spent years desperately trying to get Dakota out of the system, one after another offering to take her in. All were turned down in favor of strangers.  This bill would make such outcomes more likely.

When anecdotes collide, it’s time to look at the data.  The data show that, on top of the enormous
inherent emotional trauma of being thrown into foster care, there is a shockingly high rate of abuse in foster care itself. Study after study, including one specific to Indiana, finds abuse in one-quarter to one-third of family foster homes and the rate of abuse in group homes and institutions is even worse.  In contrast, multiple studies find that in typical cases, not the horror stories, children left in their own homes do better even than comparably-maltreated children placed in foster care.

And of course, with one provision of the bill after another making the system ever larger, it would only further overload caseworkers, leaving them even less time to find the relatively few children in real danger.

So if anything, this bill, backed by horror stories, might wind up causing more horror stories.

Misunderstanding permanence

The other argument for the bill is the same argument that stampeded Congress into passing the so-called Adoption and Safe Families Act of 1997. The claim that doing too much to help families was the reason children languish in foster care.

On the contrary, advocates of family preservation were the first to raise the issue of children languishing in foster care.  Advocates of tearing apart families then exploited the plight of these children to pass ASFA – a bill which, like federal legislation of the same era commonly known as “the crime bill” and “the welfare bill” targeted the same population: poor Black people, especially mothers.

But ASFA failed. It created a generation of legal orphans with no ties to their own families and no adoptive home either.  And it did nothing to reduce the time children spent in foster care. 

The real reason children languish in foster care is because overloaded agencies don’t have time to do anything else: They recklessly tear children from their families, then those children are filed away and forgotten as workers race on to the next case.  So it’s no wonder that in Indiana where, it seems, caseworkers have never encountered a Black family that isn’t suspect, and which tears apart families at such a high rate, children are trapped in foster care longer than in some other states.

By making it even more likely that children will be taken and less likely that reunification will be an option, this bill will only make it more likely that children’s time trapped in foster care will increase.

So the first step to reducing the time children spend in foster care is making sure that for more of those children that time is reduced to zero – by not taking them away in the first place.

The bill also misunderstands the whole concept of permanence for children.  The bill, like ASFA and much of American child welfare policy, is obsessed with one form of permanence – the paper permanence of adoption by strangers, in which children are cut off completely not only from Mom and Dad but also often from siblings, grandmothers, grandfathers, friends, teachers, and classmates. They are uprooted from everyone loving and familiar, their birth certificates changed, communication cut off, even mementos denied them. It’s all for the benefit and convenience not of the children, but of the, typically, white middle-class strangers who have taken them forever from everyone they know and love.

But as Prof. Vivek Sankaran, director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University of Michigan School of Law explains, what children need is relational permanence. Children need to be able to stay connected to everyone who loves them, whether they can care for them or not.  Why in the world would you want to deprive any child of as many loving connections as possible?  Unless the system that constantly postures about “children’s rights” and “the best interest of the child” isn’t really about either. 

One more advantage to relational permanence: it’s likely to be more permanent. Depend entirely for permanence on one stranger, or perhaps a stranger couple, and what happens when that cute little tyke becomes a rebellious teen and the strangers give up on her or him?  We don’t know how often this happens, because family policing systems almost never ask questions to which they don’t want to know the answers, but the data we do have are concerning.  In contrast, weave a web of relational permanence and the odds are far better that someone will always be there for that child. 

This is why the American Bar Association Center on Children and the Law, which once had a project to expedite termination of parental rights, now has a project to end it.

That means doing more, not less, to avoid taking children away and more, not less, to reunify them when taken.  It also means doing more to facilitate guardianships by relatives and others close to a child.  But, of course, one of those 40 or so changes in the Indiana bill would make guardianships harder.

Indiana children need laws that put them first, instead of prioritizing the rescue fantasies of white middle-class strangers.

*-Most racially biased in the sense of anti-Black prejudice.  For anti-Native American bias, the data suggest the worst is Minnesota – though, at least that state’s lawmakers are trying to do something about it.  For anti-Hispanic bias, the worst might be Maine. 

Drenched in trendy psychobabble, legislation in New Hampshire proposes to fight trauma with trauma.

A bill in New Hampshire effectively equates strong emotion with abuse.
The sponsors seem to have been inspired by the wrong Spock.

After decades of expanding the child welfare surveillance state to the point that more than one in three children – and a majority of Black children – will be forced to endure the trauma of a child abuse investigation by the time they turn 18, some states have noticed: They’ve been doing the same thing over and over and getting the same lousy results. 

A few places have realized that prevention and policing are incompatible. No matter how often you say you only want vast police power so you can be kindly helpers, you just want to prevent small problems from becoming big problems, blah, blah, blah – that doesn’t work. It fails because even when you really mean it, under this system, the prerequisite for “prevention” is inflicting trauma on children and families by interrogating and stripsearching children in the middle of the night, at best, and hauling them off to the chaos of foster care at worst. 

Realizing that doing the same thing over and over and expecting a different result is the definition of insanity, some states are trying something different. Texas dialed back the power of its family police agency (a more accurate term than child welfare agency). So did Washington State.  Kansas lawmakers are considering doing the same. Other states are revising the training for mandatory reporters and even considering reducing the number of professionals who must report. (It’s not nearly enough, but until recently the only thing lawmakers did with mandatory reporting requirements was to expand them.) 

And then there are the states that still haven’t gotten the message – most notably, at the moment,  New Hampshire.  This is a state that already tears apart families at a rate nearly double the national average.  It is a state that uses the worst form of care – institutionalization – at a shockingly high rate.  More than one-quarter of New Hampshire foster children are institutionalized – triple the national average.  Clearly, the New Hampshire family police have all the power they need to intervene when they need to and already are intervening on a massive scale when they don’t. 

But some lawmakers think that power should be expanded even further.  They’ve introduced a bill, drenched in trendy psychobabble, that could, at some point, define every child in New Hampshire as abused or neglected. 

The sponsors don’t even seem to understand their own psychobabble.  They’re in love with that ever-popular buzzphrase “trauma-informed.”  But it’s hard to imagine a piece of legislation that is less informed about trauma and more likely to inflict it. Because this bill proposes to fight trauma with trauma.  It should be obvious that the results will be -- traumatic. 

Even if one assumes everything this bill labels as child abuse really is child abuse – and that’s a real stretch since the bill seems to encompass everything from genuine, serious abuse all the way to the normal vicissitudes of life – this bill will only make everything worse. 

That’s because few experiences in life are more traumatic for a child than a child abuse investigation.  Imagine you’re a small child.  In the middle of the night a stranger, perhaps more than one, pounds on the door and demands entry.  Your mother, knowing what could happen if she says no, lets them in.  They demand that your mother awaken you and bring you to the living room.  The strangers open every drawer, every cabinet, the refrigerator and the cupboards.  You’re scared because you can’t understand why these strangers are in your house rifling your possessions. Then they pull you aside and interrogate you about every aspect of your family life.  And finally, they stripsearch you looking for bruises. 

This is the norm – and this trauma is the minimum. The trauma is of course compounded if it leads to one of the worst “adverse childhood experiences” of all: being taken into the night, sometimes literally kicking and screaming, by the strangers and consigned to the chaos of foster care either in a home or, especially in New Hampshire, an institution.  Under this bill, all this trauma could be inflicted anytime a caseworker concludes that a child’s “physical, emotional or psychological welfare” is  “at risk.” 

There are times when inflicting all this trauma is necessary: when, for example, there is a credible allegation that a child is being beaten, tortured, raped or locked in a closet and starved.  That is, of course, a tiny fraction of the cases workers see.

Of all the New Hampshire children torn from their families and thrown into foster care in 2022, 88%
did not involve even an allegation of sexual abuse or any form of physical abuse.  Eighty-six percent did not involve even an allegation of any form of drug abuse.  Far more common are cases in which family poverty is confused with “neglect.” 

But the process I described applies in every case -- even if you say all you want to do is provide help.  Few things put a child’s “emotional or psychological welfare” more “at risk” than being the subject of a child abuse investigation.  Almost nothing puts it more at risk than foster care.  No, you can’t fight trauma with trauma. 

Invasion of the well-being police

This bill is a classic example of the terrible consequences that have cascaded down upon children ever since the family policing establishment took it upon itself to do exactly what this bill explicitly demands: expand its mandate from safety and permanence to include policing children’s “well-being.” 

I am a tax-and-spend liberal and proud of it.  There are an enormous number of things government can and should do to improve children’s well-being.  Project Head Start improves children’s well-being.  Free school meals improve children’s well-being. So does affordable health care, and access to decent housing, and good child care.  Yes, these are aimed at children’s and families' material well-being – but that often does wonders for their emotional well-being. 

Where more targeted help is needed, government absolutely should make available quality mental health care – on a voluntary basis, from practitioners who families don’t have to fear will turn them in to agencies like New Hampshire’s Division for Children and Youth Services.  Mandatory reporting already scares families away from seeking help – this bill only will drive families further away. 

But this bill provides not one iota of additional help.  It simply turns DCYF into the well-being police.  

DCYF is not a benevolent helping agency – it is a police force; indeed it has more power than the police in blue uniforms. That’s why we call these agencies the family police.  There is a legitimate role for government in improving children’s well-being, but not for police. 

The trauma of family policing compromises the very well-being that the sponsors of this bill say they want to improve.  That’s why my last presentation at a Kempe Center conference was called “Attn: Family Police: Children’s Well-being is None of Your Damn Business!” 

Every coercive government intervention into family life should have to pass a “balance of harms” test. That is, the harm you will inflict through coercive intervention must be less than the harm that prompts you to intervene.  This bill massively flunks that test. 

Consider the specifics

If this bill becomes law, any child in New Hampshire could, at some point, be deemed abused or neglected if a DCYF caseworker so chooses.  And if by some chance there is a child who would never be included in these definitions of abuse and neglect then that is a child smothered in so much emotional bubble wrap that s/he is likely to emerge as an adult incapable of dealing with the world – a true example of emotional harm. 

What is striking about this bill is the fear of emotion that pervades it.  It’s as if the sponsors, instead of being guided by the wisdom of Doctor Spock, the famous pediatrician, looked instead for guidance to Mister Spock, the Star Trek character who seeks to suppress all his emotions. 

At first one might be reassured that the expanded definition of neglect only includes things that cause “serious impairment.”  But “serious impairment” then is defined as any “adverse impact” on a child’s “psychological … well-being” resulting even from a “single event [that] …may be currently observed or predicted.”  In other words: Someone thinks you might at some point say or do something that at some point will have an “adverse impact” on a child’s psyche.  Among the circumstances to be considered in determining if there has been such impact: “Any single incident or occurrence of serious injury or illness.” 

The definition of psychological maltreatment includes “coercing, which shall include …  compelling to action using threat or force.”  In other words, under this bill, it would be child abuse to say to a child: “Clean up your room or you won’t get any TV tonight.” 

And it’s not just what parents themselves do that can get them labeled abusive. This also is neglect: 

Entrustment of the care of a child by a parent, guardian, or custodian to an individual who presents a risk of inability to provide safe care, and as a result of such entrustment, the child's physical, mental, emotional, or psychological wellbeing has suffered, or is likely to suffer serious physical or psychological impairment. 

The bill provides examples of those “presumed to present such risk” but you’re not off the hook if you entrust the child to someone not on the list.  You’re just going to have to be psychic. 

As for the specific categories, some make sense.  But others include “individuals convicted of violent crime,…” Yes, that makes sense too -- if it’s Cousin Fred who was just paroled after serving 20 years for murder.  But this definition would also include 70-year-old Grandpa Sam, who was convicted of punching a man 50 years ago.  It also includes “individuals with recent instances [that’s instances, not convictions] of substance abuse…” in a state where recreational marijuana is still illegal. 

Conditions that would create a rebuttable presumption that a child's “emotional, physical, psychological, or mental well-being has suffered or is likely to suffer serious impairment” include 

“exposure of a child to verbal abuse, or psychological maltreatment directed at the child, a sibling, the other parent or significant other or another person living in the home.”  

So for starters, if mom and dad ever lose their temper with each other, that creates a rebuttable presumption the child has suffered harm to their “emotional, physical, psychological, or mental well-being.”  

And, though the phrase “other parent” implies this clause is directed at parents, that’s never explicitly
stated. So given how gym coaches have been known to behave, if this becomes law it clearly will be irresponsible for any New Hampshire parent to let their child attend phys ed class.  Come to think of it, the bill doesn’t say the verbal abuse has to come from an adult, so it might be child abuse to send the child to school at all. 

But it’s striking that it isn’t just negative emotions that can be off-limits: 

Still another factor to be considered in determining “serious impairment” is 

Parentification of a child, which occurs when a child is regularly expected to take on parental responsibilities, including but not limited to providing emotional or practical support for a parent or another individual, beyond what would be reasonably expected for the child’s age and circumstances, instead of receiving that care and support themselves.

Yes, it’s possible for parents to demand too much of their children. But how does one define “reasonably expected” – and what are the qualifications and biases of those who would be empowered to decide? 

But also, I’m struck by the notion that emotional support is portrayed as an either/or proposition.  Right now across America, families of those who died in two recent plane crashes almost certainly are coming together to grieve. Parents are comforting their children and yes, children also are comforting parents and grandparents.  Emotional support is not a zero-sum game, it’s a way we all gain strength from each other.  No doubt, Mr. Spock would disapprove.  And speaking of fictional characters, if this bill passes, anyone like the Gilmore Girls probably should stay out of New Hampshire.*

Class and cultural bias 

Biases pervade this bill.  Let’s return to the “entrustment” clause. Remember that long list of people to whom, if you entrust them with watching your child it’s a rebuttable presumption of abuse or neglect?  Who has the fewest options when it comes to entrusting their child if there’s an emergency?  And who is more likely to encounter an emergency? 

And then there’s that “parentification” clause.  

As Lenore Skenazy writes in Reason, what the bill defines as “parentification” 

happens in incredibly dysfunctional families as well as in incredibly functional ones—say, when a child of immigrants proudly translates for their parents at the doctor's office or the auto repair shop.

And there are, of course, any number of chores a poor child might have to do that a rich child won’t. So this clause is one more way to target poor families.  The solution to this kind of “parentification” is, of course, the material support I suggested earlier. 

Another clause in the bill lists among evidence for a rebuttable presumption of abuse or neglect “frequent illnesses that are not being adequately addressed or controlled.” Which families are going to have the most difficulty addressing or controlling children’s frequent illnesses? The ones who are more likely to live in environments that breed illness and less likely to have consistent medical care. 

There also is cultural bias at play.  In some cultures everything is loud: The laughter, the tears, the joy and also the anger.  So those parents may yell. They might even say things for which they later have to apologize.  (The children might say things for which they feel a need to apologize, too, but the sponsors of this bill might consider that “parentification.”)  This bill implies that the yelling in anger causes emotional harm.  Other cultures might express anger through stony silence.  But, for some reason, on that the bill is - silent. 

With that much bias built into the bill on top of the racial and class bias we know permeates family policing already, what happens if this bill becomes law and caseworkers get to decide what is usual, or reasonable, or whatever other vague term is in the legislation?

Two other dangerous clauses 

● The drive pregnant women away from prenatal care and hospitals clause: While other states move to narrow the grounds for intervention when substance abuse is alleged – because of the growing realization that any and all substance abuse does not, in fact, always endanger a child, the New Hampshire bill proposes to move in the opposite direction. 

Section after section of this bill ratchets up suspicion of anyone using drugs – but of course, it’s not really anyone.  It isn’t going to be applied to parents like the New Hampshire counterparts of the cannamoms next door in Massachusetts who were celebrated in Boston Magazine as they smoked pot during their kids’ play dates.  Nor is it targeting the drug of choice for affluent “wine moms” – street name “mommy juice” -- who do the same. 

Sometimes parental drug abuse really does put children at risk of serious harm – and sometimes it doesn’t. Any clause concerning child abuse and drug use should require that the particular drug use in question by the particular user in question is a genuine threat to their children. Because the greater danger is things like pregnant women being too scared to get prenatal care or too scared to tell their doctor they’re using drugs – for fear of being investigated and having their children taken away. 

● The full employment for child abuse pediatricians clause:  That’s the clause in the bill about how if your child is injured and you can’t explain why, it must be child abuse.  The stunning amount of harm that can cause to innocent families has been documented over and over.  

Skenazy also points out that the bill isn’t all bad.  There are a couple of provisions that attempt to expedite reunification for example. 

So the bill is only 95% bad.  That’s more than enough reason for New Hampshire lawmakers to take a truly “trauma-informed” approach and vote the bill down.

*-When I first wrote that, I thought it was a joke, but it turns out pop psychology blogs are full of condemnation of Lorelai.