Hughes Cousins-Chang, a college student from Tulse Hil, south-east London, was arrested by Metropolitan Police and subsequently found to be innocent following a detention that lasted in excess of 12 hours. He’d also endured a strip search at a police station after being arrested on suspicion of a robbery.
A High Court has recently ruled that the 17-year-old was entitled to legal protections, and that U.K. Home Secretary Thereas May violated the law when she failed to act in repealing the legislation in question.
Young lives lost
The ruling followed after the high profile deaths of two 17-year-olds, Joe Lawton and Edward Thornber, who took their own lives after becoming entangled with the police.
Joe’s parents, Nick and Jane Lawton, said that their son would “still be here today” if he had received their support when he was taken into custody on a drinking and driving offence.
Joe was arrested when police stopped him after he drove his new car home from a party. He was held overnight at Cheadle Heath police station in Greater Manchester without his parents’ knowledge.
Two days later, Joe took his own life using the shotgun from the family farm.
Earlier in the day of the High Court’s ruling, Mr Lawton told BBC Breakfast: “If we get the change that we are looking for now, it would have meant that we could have been there to support Joe while he was in the police station and explain to him ‘It is not the end – we can get through this, we can help you and make sure that your future is as bright as you expected it’.”
Edward Thornber had been sent a court summons “in error” rather than a final warning for possessing 50p worth of cannabis.
“If we had been told and had been informed we would have been able to support Edward going through that crisis and to reassure him that it was a mistake,” said his mother, Ann Thornber.
“He was 17 and he was being treated as an adult when in theory he wasn’t, he was a 17-year-old.”
The former head boy of a Catholic High School, also a Lacrosse star, was found hanged on September 15, 2011. The 17-year-old was a student at Loreto College and was hoping to coach lacrosse in America before going on to attend a university.
In both of these cases, the parents were not informed of the arrests because their sons were treated as adults in custody — even though if they had been actually charged, they would have been treated as children.
The surviving families of both youths said that if the law were changed, it would bring the UK into line with the United Nations convention on the rights of the child, which states that every person under 18 must be treated as a child if they are considered as such in the eyes of the law of that country.
In handing down the judgment, Lord Justice Moses said: “This case demonstrates how vulnerable a 17-year-old may be. Treated as an adult, he receives no explanation as to how important it is to obtain the assistance of a lawyer.
“It is difficult to imagine a more striking case where the rights of both child and parent under article 8 [of the European convention on human rights, guaranteeing family life] are engaged than when a child is in custody on suspicion of committing a serious offence and needs help from someone with whom he is familiar and whom he trusts in redressing the imbalance between child and authority.”
Justice Moses described how, four weeks after his 17th birthday – at 3.55 PM on April 19 2012 – Hughes was arrested on suspicion of robbery of a mobile phone on a bus. He had never been in trouble before.
Shortly after he was taken to Battersea Police Station “he asked that his mother be informed”.
That was not allowed, said the judge. “She did not learn that he was in custody for about four-and-a-half hours after he had been arrested.
An inspector authorised the delay in making a telephone call to his mother, writing: “…as the detained person is in custody for an indictable offence and has not been charged and there are reasonable grounds for believing that the exercise of that right/those rights will hinder the recovery of property obtained in consequence of the commission of such an offence.”
The claimant was released after 11 hours in custody. A month later, he was informed by a letter that his bail was cancelled, and that no charges had ever been brought against him.
17-year-olds as ‘anomoly’
According to the National Appropriate Adult Network, 75,000 17-year-olds are held in police custody in the United Kingdom every year.
A Criminal Justice Joint Inspection entitled Who’s looking out for the children? investigated juvenile detention, with an emphasis on whether the “Appropriate Adult” provisions of recent legislation was being applied by police in the proper manner.
The report, released in 2011, explains that: “The arrangements for Appropriate Adults were introduced under the same legislation that placed reasonable restrictions on the length of time any individual could be held by the police before being charged and taken to court, and thus provided protective measures important for us all. Under its terms, the presence of an Appropriate Adult is required before the police can interview and (where appropriate) charge any unaccompanied children or young person or vulnerable adult to ensure that their rights are met, in effect acting in the role of parent or concerned adult.”
The report continues on to explain: “The need for such a role is self evident. Police station custody areas can be very frightening places for adults, and are all the more so for young people. Children brought into police custody may be traumatised or distressed, or under the influence of alcohol or drugs (or their after-effects). A significant number have communication, learning, language or health needs, and many do not understand what is happening to them or the terminology used.”
This report considers juveniles (children and young people aged 10 to 16 years), because the special provisions of care under the Police and Criminal Evidence Act 1984 (PACE 1984) apply to that age group only. This makes 17 year olds an anomaly. Under all other United Kingdom law and United Nation conventions, a child or young person is considered to be up to 18 years old. However, in a police station, a 17 year old is treated as an adult.
It was that particular legal “anomaly” that the High Court was asked to consider.
As for how the Appropriate Adult provision works in practice for those children who are under 17 years of age, there remains considerable room for improvement. A prepared press release accompanying the report handily broke out some of the more serious problems:
- Other than in one area, the flow of information between Youth Offending Teams and Appropriate Adults was found to be ineffective.
- Appropriate Adults frequently knew little about the child or young person and there was evidence that this lack of knowledge hindered their efforts to provide support.
- Police custody records, an important source of information for the Appropriate Adult, were inadequate, in many cases not correctly completed and lacking in detail.,/li>
- The physical environment of custody areas (for example, a lack of privacy, noise and physical barriers) did not encourage children or young people to disclose vulnerabilities or special needs.
- There was a lack of any credible assessment of the quality of service provided by Appropriate Adults. They were found to be passive in interviews and unlikely to challenge the police.
- Other than in one area, there was a lack of awareness at all levels of both the police and local authority regarding how many children and young people continued to be held in police cells after being charged, and for how long.
Australia’s similar ‘anomaly’
According to a recent column by Madeleine Forster, secondee lawyer at the Human Rights Law Centre in Australia:
There is a similar irony in the way we treat young people aged 17 in the criminal justice system in Australia. In Queensland, 17 year olds are currently incarcerated in adult prisons and are treated more or less like adults in that system, contrary to Lord Justice Moses’ conclusions about the international definition of a child and state obligations to protect the interests of children.
Like the UK, the UN Committee on the Rights of the Child has also criticised Australia for tolerating laws in Queensland that do not prioritise the best interests of 17 year olds in the criminal justice system.
Forster concludes: “Even absent an Australian Human Rights Act, Lord Justice Moses’ judgment is instructive as an advocacy tool in the Australian context. The Lord Justice cites a wealth of domestic and international opinion about the need to protect vulnerable 17 year olds in the criminal justice system including numerous academic findings, governmental statements, judicial pronouncements and international commentary.”
Youth advocates the world over may benefit from an analysis of this learned judge’s ruling.
In April 2013, the Australian Institute of Health and Welfare released Youth justice in Australia 2011-12. The Institute provides a brief summary:
On an average day in 2011-12, there were almost 7,000 young people aged 10 and older under youth justice supervision in Australia due to their involvement or alleged involvement in crime. Most (83%) were male and the majority (79%) were aged 14-17. Indigenous young people were over-represented-although less than 5% of young Australians are Indigenous, 39% of those under supervision were Indigenous.
Among all those aged 10-17 in Australia, this equates to a rate of 26 young people under supervision on an average day per 10,000 in the population, or 1 in every 385 young Australians.
“Suicide boys’ parents in law call,” Express, March 28, 2013.
Joe Lawton and Edward Thornber’s parents petition over death, BBC News, March 28, 2013.
“Another blow for Theresa May: human rights law means 17-year-olds in custody must be treated as children,” John Aston, Daily Independent, April 25, 2013.
“Police must treat 17-year-olds in custody as children, court rules,” Owen Bowcott, The Guardian, April 25, 2013.
UK High Court of Justice holds 17 year olds should be treated as children in the criminal justice system, Case Notes, Human Rights Law Center, April 25, 2013.
On Tuesday, June 25, 2013, the United States Supreme Court issued a ruling that many advocates strikes a blow against the very court of the Indian Child Welfare Act.
In a 5-4 ruling drafted by Justice Samuel Alito, the court ruled that under the provisions of the Indian Child Welfare Act that a child, widely known as Baby Veronica, does not have to live with her biological Cherokee father.
Writing in an Indian Country article, Rob Capriccioso explains: “The child was taken from her adoptive white parents’ home after living there for the first two years of her life. Dusten Brown, a Cherokee Nation citizen, prevented the adoption, saying ICWA applied in his case. The South Carolina courts agreed, and the child, now 3 1/2, has lived with Brown since his challenge.”
Support for the position to uphold the lower court rulings and the protections of the ICWA was characterized as “historic,” a Wall Street Journal column explained.
. U.S. Solicitor General Donald Verrilli and 19 states and state attorneys general were joined by a large array of groups who submitted 24 separate briefs in all. Not one state submitted briefs in support of Adoptive Couple.
The Journal further explains that: “The overwhelming support included 17 former and current members of Congress; Casey Family Programs, the Children’s Defense Fund, and 16 other child welfare organizations; the American Civil Liberties Union; broad coalitions of psychology associations, child advocates, and legal experts; adult Native American adoptees; and tribal amicus briefs which include 333 American Indian tribes.”
Former U.S. Sen. James Abourezk — who led the Commission that unearthed evidence of widespread destruction of Indian families by child welfare agencies in the United States — called the ruling “an assault on tribal sovereignty.”
“It’s an attack on tribal sovereignty through the children,” Abourezk said according to an artlce in Argus Leader. “I can’t believe they did this.”
The former Senator is certainly in a good position to know what the legislative intent of
the ICWA truly was. The House Report that accompanied the ICWA read, in part:
The disparity in placement rates for Indians and non-Indians is shocking. In Minnesota, Indian children are placed in foster care of in adoptive homes at a per capita rate five times greater than non-Indian children. In Montana, the ratio of Indian foster-care placement is at least 13 times greater. In South Dakota, 40 percent of all adoptions made by the State’s Department of Public Welfare since 1967-68 are of Indian children, yet Indians make up only 7 percent of the juvenile population. The number of South Dakota Indian children living in foster homes is per capita, nearly 16 times greater than the non-Indian rate. In the State of Washington, the Indian adoption rate is 19 times greater and the foster care rate 10 times greater. In Wisconsin, the risk run by Indian children of being separated from their parents is nearly 1,600 percent greater than it is for non-Indian children. Just as Indian children are exposed to these great hazards, their parents are too.
The House Report continues on to say: “In some instances, financial considerations contribute to the crisis. For example, agencies established to place children have an incentive to find children to place.” More to the point:
Indian community leaders charge that federally-subsidized foster care programs encourage some non-Indian families to start “baby farms” in order to supplement their meager farm income with foster care payments and to obtain extra hands for farmwork. The disparity between the ratio of Indian children in foster care versus the number of Indian children that are adopted seems to bear this out. For example, in Wyoming in 1969, Indians accounted for 70 percent of foster care placements but only 8 percent of adoptive placements. Foster care payments usually cease when a child is adopted.
Following National Public Radio’s 2011 report Native Foster Care: Lost Children, Shattered Families,which covered the state of Native American foster care in South Dakota, reporting significant violations of the Indian Child Welfare Act by the state’s Department of Social Services, six members of the United States House of Representatives asked then-Assistant Secretary for Indian Affairs Larry Echo Hawk to investigate the claims, report on their veracity, and outline what steps, if any, the Bureau of Indian Affairs would take to rectify the situation.
The Coalition of Sioux Tribes for Children and Families described what happened next in a report issued in late January, 2013:
Is the law still needed?
A Report To The US Congress From The Coalition Of Sioux Tribes For Children And Families examined NPR’s reporting point-by-point, demonstrating not only that Native children are indeed represented in South Dakota’s foster care system in vastly disproportionate numbers, but that there also exists a clear and specific economic motive underlying the state’s child removal polices, precisely as NPR had reported:
Nearly $100 million in federal funding is being sent to South Dakota to administer foster care each year. This includes $55 million for Children’s Services,9 $48 million to fund foster children’s health care,10 and $4 million for administration. These federal monies constitute a significant portion of state expenditures, and, according to the healthcare consumer nonprofit organization Families USA, they have “a positive and measurable impact on state business activity, available jobs, and overall state income.” All this demonstrates a strong financial incentive for state officials to take high numbers of Native American foster children into custody. Anecdotal evidence and testimony confirm that this incentive motivates the state’s actions.
By no means is South Dakota the only state in which Native children are disproportionately represented. However, finding truly accurate figures is often made difficult by the absence of complete data. In a 2009 report from the University of Wisconsin, A report: Racial Disproportionality in Wisconsin’s Child Welfare System, researchers noted that in 38,151 instances — slightly more than one half (50.3%) — the ethnicity of the child was listed as either unknown, or the corresponding field was simply left blank. The researchers explained that one result was that: “American Indian children are overrepresented in foster care, but we do not have sound data about their treatment in child welfare beyond investigation.”
The Minnesota Child Welfare Disparities Report, released in 2010, provides some meaningful statistics regarding the disparities in the child welfare system. The study found that American Indian children were more than eight times as likely to be subject of a neglect report, and that American Indian children were placed in out of home care in 2008 at a rate “more than twice that of any other group, and [were] more than 12 times more likely than a white child to spend time in placement.” American Indian children were as high as “six times more likely to be subjects of child protection assessments and investigations than a White child.”
Among the more recent sources on disproportionality is a study released by the National Council of Juvenile and Family Court Judges in May 2012. The study found that: “Across the United States, Native American children are overrepresented in foster care at a rate of 2.1 times their rate in the general population. While not all state show disproportionality, 21 states do have some overrepresentation. Twenty-seven percent of the states that have overrepresentation have a disproportionality index of greater than 4.1. In Minnesota, the disproportionality is index 11.2, in Washington State it is 5.6.”
BJ Jones, director of the Tribal Judicial Institute, provides some of the more recent data in chart form in a worksheet released in August 2012. Using recent data, Jones documents some of the variances between states. The Disproportionality rate for removal of native children has increased in most states over last five years. In Minnesota – An Indian child is 11.6 times more likely to be removed; Washington – 6.9 times more likely; Idaho 6.6; Nebraska 6.8; Iowa 5.4; Alaska 3.1; Montana 3.8; and in South Dakota, Native children are at risk of removal that is 3.9 times higher than the general population.
Tuesday’s ruling is somewhat disappointing, however the decision was narrowly tailored to the facts of the particular case. The ICWA is still alive and well. Now, if only we can get some more States to follow a federal law that has been in effect since the mid-1970s, some true progress would be made. The same may reasonably said of the Adoption Assistance and Child Welfare Act of 1980, which requires agencies to provide “reasonable efforts to reduce the number of innocent families who are impacted by wrongful child removals.
If you have been viewing the recent events concerning the Magdalene Laundries as a distinctly Irish phenomenon, you may need to readjust your focus to accommodate a more encompassing global view.
In the Irish Republic, over 10,000 girls were warehoused in laundries operated primarily by sectarian agencies between 1922 and 1996, according to the Report of the Inter-Departmental Committee to establish the facts of State involvement with the Magdalen Laundries published last February. The report acknowledged that in addition to Ireland, laundries existed in Northern Ireland, the United Kingdom, Europe, Australia, Canada and the United States. While many were Catholic-operated, Protestant institutions that were similar in nature also existed.
As many as 2,200 children were illegally exported from the Magdalene Laundries in Ireland to adoptive parents in the United States, according to Mike Milotte, author of Banished Babies: The Secret History of Ireland’s Baby Export Business. Each of those children went to white, Catholic adoptive parents in the Unites States at the insistence of the Catholic Church.
There are several media accounts explaining how this happened in practice. An article in The Age tells the story of Mary Norris, whose father passed away in 1945. Some time thereafter, Mary’s mother formed a relationship with a farmer, of which the local priest disapproved. Mary described what happened when her mother refused to break up her relationship:
About two months later, as my mother was breast-feeding the baby, a car drew up and a police officer and a child protection officer got out and told my mother they’d come to take us away as she was a bad example. We were all crying but it was no use; we were taken in front of a judge and made wards of court. We went to the orphanage that same night. It was called an industrial school, though all they ever taught us was Christian doctrine. My two brothers, crying and crying, were sent to a different place run by the Christian Brothers.
That was all that it took to become an inmate. To be accused of being promiscuous, or of being “at risk” of so becoming. Or, as in Mary’s case, being under the care of a parent deemed to be unfit by virtue of a relationship with a farmer. At least 28 percent of the young girls who passed through the Magdalene Laundries in the Irish Republic were there as a result of direct state involvement. In many cases, either the police, some form of court-ordered sentencing, or the direct involvement of social services provided the point of entry into the laundries. A common point of entry for some older children was that of turning 15, and of being “returned” when the payments to the foster parents stopped.
During the latter years of the laundries operation, the report notes “social workers from the health authorities began a very close working relationship with them.” In Mary’s case, the social workers worked hand-in-glove with the police in removing the children into the “care” of the sectarian agencies.
In February of 2013, singer Sinead O’Connor revealed the she had herself been relegated to the Sisters of Our Lady of Charity laundry in High Park, Dublin, at the age of 14. She spent a total of 18 months in the laundry.
During her international interview, she said: “We were girls in there, not women, just children really and the girls in there cried every day. It was a prison. We didn’t see our families, we were locked in, cut off from life, deprived of a normal childhood.
“We were told we were there because we were bad people. Some of the girls had been raped at home and not believed. One girl was in because she had a bad hip and her family didn’t know what to do with her. It was a great grief to us.”
The singer said that she had witnessed a newborn baby boy being torn from a friend’s arms during her time in the convent. As she recounted the incident, “One morning I woke to hear my friend screaming. I ran out of my cubicle, I saw her surrounded by two or three nuns. They tore my friend’s baby from her arms.”
During the 1950s, the Protestant-run Bethany Home joined others in sending children to the United States for adoption, a scheme that was facilitated by the Irish government. In “Banished Babies: The Secret History of Ireland’s Baby Export Business,” Mike Milotte mentions what he describes as “a racist sub-text” underlying Irish children’s popularity: they were guaranteed to be “white.” In his review of Milotte’s book, Padraig O’Morain, Social Affairs Correspondent with The Irish Times candidly explains:
After the end of the second World War, Ireland gained a reputation as a place where American servicemen and their spouses could obtain babies easily. It was not that babies could not be had for adoption in the United States – but what Americans wanted were white babies with no danger of any “coloured” genes lurking in their DNA. These, Ireland could supply.
“Admittance to the Bethany home was generally through referral by a network of Church of Ireland clergy, who received by return a request for a financial contribution,” writes Niall Meehan in his supplement to History Ireland. In other words, there was something akin to a “finder’s fee.”
Bethany Home’s claim to fame is largely that it held itself out as being non-denominational. Indeed, Bethany’s Managing Committee turned down an offer from a Catholic agency, the St Patrick’s Guild, to swap their Protestants for Bethany’s Catholic unmarried mothers. Thus, would-be adoptive parents abroad who happened to be Protestant managed to secure a child that was “best suited” to their needs.
So, where did the children born in these facilities wind up? Inasmuch as Bethany Home goes, Niall Meehan explains in his submission to the Irish Inquiry that: “Children were transferred to like-minded institutions in England: the Salvation Army, Fegan’s Homes for Boys and Barnardo’s… Each in turn sent children ‘overseas’ to provide ‘the benefits of servitude’ to the colonies under the 1922 Empire Settlement Act. Fegan’s ‘Protestant, Evangelical, undenominational’ home advertised openly that it ‘receive[d] destitute and orphan boys to educate and train in farm work for migration to Canada.’”
By that time, England had a 300-year-long history of exporting children to other nation in the name of empire building. That it also took on the role of a redistribution hub for children should perhaps not be too surprising. Just what the actual point of origin may have been for the many children exported to Canada, Australia, and elsewhere by England may never be known. To put it another way, some portion of that highly-touted “British stock” that had been exported overseas may not have been, strictly speaking, British stock at all.
As Meehan explains: “Broadly, the state used religiously run institutions to effectively achieve a cheaply run, privately run, and discretionary welfare, education and health system, whose effects are still with us.”
In the United States, the sectarian nature of the foster care system is more a reflection of the capacity of the religious institutions to hold large quantities of children. It would be no exaggeration to say that a list of New York City foster care service providers that I obtained during the late 1990s reads like a veritable “Who’s who” of the Archdiocese of New York. Not to be unduly harsh against Catholics, I hasten to note that Lutheran Social Services has managed to carve out a nice market niche for itself in the mid-western United States, as has the Church of Latter Day Saints in Utah.
For some time, anguished former residents of the Magdalene Laundries outside of the Irish Republic have bee calling for inquiries into the laundries.
Finally, Northern Ireland has started up an Inquiry of its own — one that may include an examination of its own Magdalene Laundries. The Historical Institutional Abuse Inquiry is currently asking for victims of institutional abuse to step forward.
“The Inquiry is independent from government and has two main components. One is the Acknowledgment Forum, which has four panel members whose task it will be to listen to the experiences of those who were children in residential institutions (other than schools) in Northern Ireland between 1922 and 1995. It is now ready to start its work,” the Northern Ireland Historical Institutional Abuse Inquiry’s web site explains.
More information continues to emerge with each passing day with regard to the international brokering of children. Locations of Magdalene-styled facilities in North America, Northern Ireland, England, Australia, and elsewhere are currently being sought out. But where are their records to be found?
The records of The Protestant Adoption Society, Church of Ireland Social Services, Bethany Home, Magdalene Home, The Nursery Rescue Society and Fairfield are held by a private adoption agency located in Dublin. PACT Services — a registered charity — offers the services of “Crisis pregnancy,” “adoption,” “post adoption,” and family tracing services. For the latter services, it is advised that “those seeking information about their origins to work through a registered agency which will act as an intermediary on their behalf.”
These documents hold valuable keys for thousands of individuals who are trying to reconstruct family histories that were disrupted by forced adoptions and international child migration. So much of vital human history is similarly scattered about in various archives donated by one or another child saving institution. For example, the records of the Child Welfare League of America are housed at the Social Welfare History Archives in Minnesota. A number of their records remain under seal until 2020.
Efforts should be made to protect, preserve, and properly catalog all of these documents globally. Advocates should consider applying legal challenges to the time constrictions on the release of such records.
This may seem an insurmountable task, but consider that after Oliver Stone’s interpretation of the events surrounding the assassination of J.F.K. was screened in theaters, public pressure was brought to bear calling for the release of many of the records relating to that historical event.
Fresh call for statutory Magdalene inquiry
Irish Times, June 18, 2013
Reconciliation forum would be ‘pointless’, says Magdalene laundries survivor group
Irish Times, Jun 10, 2013
The dirty linen from the Magdalene Laundries must be aired
The Historic Institutional Abuse Inquiry must be widened to include the women of Northern Ireland’s Magdalene Laundries, says Patrick Corrigan
A Magdalene Laundry survivor speaks out
Washington Times, Communities, June 6, 2013
Compensation plea over laundries
Belfast Telegraph, June 18, 2013
‘Give the laundry girls their compo’
The Irish Sun, June 19, 2013
Rights watchdog: State acted wrongfully
Irish Human Rights Commission calls for comprehensive Magdalene redress scheme
IrishCentral, June 19, 2013
Judgment believed to be the first time that parents in the U.K. have won damages from a council over a breach of duty to parents in a child abuse case.
The actual names of the accused were thoughtfully anonymised by HH Judge Anthony Thornton. The case may otherwise be referenced as  EWHC 416 (Admin) Case No: CO/7304/2012.
According to Patrick Butler, social policy editor with The Guardian, the case “was the latest blow for a council struggling to recover from the controversy in 2008 surrounding the death of Peter Connelly, a 17-month-old boy on its child protection register known as Baby P.” As Butler’s article describes it:
Two senior child protection professionals who were wrongly investigated over false allegations they abused their young daughter have launched a scathing attack on the “unlawful and unprofessional practices” they say are rooted in Haringey council’s social services department.
The couple, known for legal reasons as AB and CD, were exonerated and awarded damages by a court last month following a botched inquiry in 2011 by the council’s children’s social services into a “malicious” anonymous tip-off that they had slapped and verbally abused their child, known as EF.
The couple described their experience as a “nightmare” in which they feared their daughter would be taken into foster care, and that their professional careers may be ruined as a result o the investigation. They sought out judicial review against Haringey council children’s services to ensure that references to the unlawful investigation were expunged from their records.
In a letter addressed to Libby Blake — the council’s director of children’s services — they attacked what they described as a “culture of bad practice” at the council, expressing that they have no confidence that it offers anything other than “superficial compliance” with social work law and the codes of practice.
In March of 2013, the couple was exonerated and awarded damages by the court, The Guardian reported in a previous article.
“In his ruling, Judge Anthony Thornton agreed that AB and CD had several grounds for legitimate complaint over Haringey’s handling of the case, including that it embarked on an initial assessment of the daughter without evaluating whether she was really at risk, and that it failed to take steps that would have ‘enabled an objective and fair decision’ to be taken, the paper reported.
The judge also ordered Haringey council children’s services to pay the parents £2,000 compensation for the infringement of their Article 8 rights to “private and family life” under the European convention on human rights.
The mother said council social workers had acted “outrageously,” adding that: “They thought they were completely unaccountable – but today they have been held to account by the court. This is a landmark case for parents. One wonders how many families are out there suffering.”
In the United Kingdom it is called a “section 47 enquiry,” however a rose by any other name is still a rose. A child abuse investigation may be the most devastating “enquiry” a family may have to face, and regardless of the final outcome, there are tangible and lingering consequences.
These points were not lost on judge Thornton, who wrote:
A section 47 enquiry has in recent years become very damaging for the life, career and family relationships of many who are parenting or caring for the child being assessed. There are now extensive statutory checks that must be made about adults who are caring for or working with children or who are coming into contact with them in an educational, health, pastoral or care context. Thus, involvement in a section 47 enquiry may often result in the ending of a career involving contact with children. This will usually be for good reason but this is not always so and there will rarely be a means for those unfairly marked out by involvement in a section 47 enquiry to eradicate that stain on their professional and personal reputation.
A section 47 enquiry can of course prove to be very damaging for a child, for her parents and for their mutual relationships. In particular, the lives of parents can be badly affected if and when adverse conclusions are made about the harm that they have inflicted on their child. These can include criminal prosecution, the loss or their child, intrusive involvement in their family and private lives, loss of employment or being barred from working with children and an adverse entry on their records held by reporting authorities such as the police and various regulatory bodies. A particular trigger for any of these adverse effects is the fact that a section 47 enquiry was undertaken in relation to their child at all since its threshold is that significant harm has occurred or that there is a risk of it occurring. Thus, a section 47 enquiry, which will often be reportable by the parents concerned, can blight their lives irrespective of the nature and extent of the significant harm or of their involvement in it or of the reasonableness of the suspicion that generated the enquiry in the first place.
The United Kingdom adopted many of the rights set out in the European Convention on Human Rights, and its Protocols are incorporated into British law by the Human Rights Act of 1998. Article 8 of the Convention provides:
Article 8: Right to Respect for Private and Family Life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
As Liberty’s Your Rights website explains it:
In many cases decided by the European Court of Human Rights (ECHR), interferences with privacy have been in breach of Article 8 because they have not satisfied this first condition. In order for an interference to be in accordance with law, the interference must have a proper legal basis, such as a piece of legislation or rules of a professional body. The law or rule must be understandable, detailed and clear enough to allow a person to regulate his or her behaviour – a secret, unpublished memo in a government department will not suffice, for example. Some well known scenarios involving interference that could not be justified under Article 8(2) have been the telephone tapping, or bugging, of individuals by the police using procedures and systems not authorised expressly by statute.
As this case illustrates, Section 8 may well provide a measure of legal redress for those families in Europe who have been unfairly impacted by careless child abuse investigations and/or unnecessary child removals.
In Jessica and Gerson Urbina vs. Tina Klinkose-Kyler, Laronda Southworth, and A Bond Of Life Adoptions, LLC. No. 06A01-1210-CT-464, the Court of Appeals in Indian issued an unpublished ruling on April 25, 2013, in a case involving the withholding of information by an adoption agency from a prospective adoptive couple from Canada. A lower Court had sided with the Adoption Agency, dismissing the case on a Motion to Dismiss, bringing the case before the Court of Appeals.
The Urbines had contracted with A Bond Of Life Adoptions through its Zionsville location, which is one of several locations through which the company conducts business under a variety of names in the states of Indian and Louisiana. The ruling explains what happened thereafter:
Ultimately, a prospective match was found with the unborn child of a woman in Indiana and things progressed to the point that the child was born. Several days after the child was born, and before the child left the hospital, the Urbinas were informed that the child might be addicted to drugs by virtue of the birth mother’s drug use during pregnancy. The Urbinas learned at the same time this information had been conveyed to ABLA several days before. Upon learning of the possibility of drug dependency, the Urbinas withdrew from the adoption process and filed the present lawsuit against ABLA, alleging multiple theories of recovery.
During the adoption screening and matching processes, the Urbinas indicated to ABLA in writing and verbally “that under no circumstances were they interested in being matched with a prospective birthmother who was abusing narcotics, alcohol, or other drugs.” The Urbinas were matched with a prospective birth mother in Noblesville, Indiana,a dn on February 2, 2012, the Urbinas were notified that the birth mother had gone to the hospital for the purpose of inducing labor.
At 8:30 a.m. on February 3, “a social worker involved in the adoption” informed ABLA that the baby was being monitored for withdrawal caused by the birth mother’s methadone use during pregnancy. When ABLA personnel met Ms. Urbine at the hospital, they did not inform her of the information communicated in the social worker’s call.
The Urbinas spent the weekend bonding with the baby, and learned on Monday morning that the birth mother used methadone during her pregnancy and that the baby was experiencing withdrawal. This information was conveyed in a phone call from a social worker, who also informed the Urbinas that the possibility of the birthmother’s withdrawal had been discussed with the adoption agency.
The Court of Appeals applied the basics of contract law in its ruling, explaing that: “When interpreting a contract, we give the language of the contract its plain and ordinary meaning. If a contract is ambiguous or its meaning uncertain, its construction is a matter for the fact-finder. We read the contract as a whole when determining the parties’ intent. The court will make every attempt to construe the contractual language such that no words, phrases, or terms are rendered ineffective or meaningless. We must accept an interpretation of the contract that harmonizes its provisions, versus one that causes its provisions to conflict.”
The Adoption agency argued that the contract insulated against such legal actions, but the Court disagreed, noting: “The foregoing release provision explicitly would shield ABLA from liability arising from a claim premised upon an unknown medical condition of the child, birth mother, or birth father. The question is, unknown to whom?”
The Court ruled: “The provision upon which ABLA relies would not shield ABLA from liability arising from a determination that ABLA wrongfully withheld information from the Urbinas.”
YOU GET IT – YOU PASS IT ON
Judge Bradford, in a concurring opinion, wrote: “While I fully concur with the majority’s disposition of this case, I write separately only to further emphasize what I consider the most significant holding of this case. I agree that the Agreement required ABLA to disclose to the Urbinas any relevant information gathered during the adoption process. In short, you get it–you pass it on. I also agree that the release in the Agreement does not cover nondisclosure and that it shields ABLA only from liability for any information that turns out to be incorrect. Quite simply, disclosure of incorrect information and nondisclosure are just not the same thing. Were we to accept ABLA’s argument on this point, it would render the disclosure requirement meaningless.”
A major part of the problem with adoptions continues to be that when adoption agencies do have relevant background information, they often refuse to pass it on to prospective adoptive parents.
Historically, child welfare agencies and their service providers have raised public policy concerns in their defense against claims of fraudulent concealment and fraud in adoption cases. In M. H. v. Caritas Family Services, service providers Lutheran Social Services of Minnesota, Catholic Charities of the Archdiocese of St. Paul and Minneapolis, and Children’s Home Society of Minnesota joined the defendant as amicus curiae, arguing that the deliberate withholding of information about an adoptive child’s background makes for sound public policy. In Roe v. Catholic Charities, the defendants argued that disclosure of the requested information to the adoptive parents would have violated public policy evidenced by Illinois statutes. In Meracle v. Children’s Service Society, the defense argued that public policy precluded an action against an adoption agency for negligent misrepresentation. Similar arguments were raised in Michael J. v. Los Angeles County and in Mohr v. Commonwealth, a Massachusetts case in which Special Assistant Attorney General Owen Gallagher advanced the argument on behalf of the Commonwealth, and John T. Landry, III, Special Assistant Attorney General, argued the case on behalf of the social worker who was charged with misrepresentation and fraudulent concealment.
In Indiana, the A Bond Of Life Adoptions, LLC., operates under a number of names, including: Plainfield Adoption Agency, Anderson Adoption Agency, Avon Adoption Agency, Beech Grove Adoption Agency, Bloomington Adoption Agency, Brownsburg Adoption Agency, Carmel Adoption Agency, Columbus Adoption Agency, Crawfordsville Adoption Agency, Fishers Adoption Agency, Franklin Adoption Agency, Gary Adoption Agency, Greenfield Adoption Agency, Greenwood Adoption Agency, Hammond Adoption Agency, Indianapolis Adoption Agency, Kokomo Adoption Agency, Lafayette Adoption Agency, Lawrence Adoption Agency, Lebanon Adoption Agency, Marion Adoption Agency, Mooresville Adoption Agency, Muncie Adoption Agency, Noblesville Adoption Agency, Richmond Adoption Agency, Speedway Adoption Agency, Terre Haute Adoption Agency, West Lafayette Adoption Agency, Westfield Adoption Agency, and Zionsville Adoption Agency – the latter of which was the agency through which the Urbina family had contracted with the parent company A Bond Of Life Adoptions,
In Louisiana, the company conducts business under the names: Baker Adoption Agency, Baton Rouge Adoption Agency, Chalmette Adoption Agency, Covington Adoption Agency, Gretna Adoption Agency, LaPlace Adoption Agency, Harvey Adoption Agency, Mandeville Adoption Agency, Hammond Adoption Agency, Zachary Adoption Agency, New Iberia Adoption Agency, Kenner Adoption Agency, Terrytown Adoption Agency, Lafeyette Adoption Agency, New Orleans Adoption Agency, Metairie Adoption Agency, Houma Adoption Agency, Marrero Adoption Agency, Prairieville Adoption Agency, and Slidell Adoption Agency.
“TeenScreen is dead, according to a recent announcement by Researcher Ken Kramer of PsychSearch.net. An “important announcement” posted on TeenScreen’s website — current as of November 15, 2012 — would bear this out. TeenScren explains:
We are sorry to inform you that the TeenScreen National Center will be winding down its program at the end of this year. Accordingly, we will no longer train or register new programs.
We will provide updates on the TeenScreen website for a limited time with respect to any other screening programs of which we become aware.
“TeenScreen was a huge program for psychiatrists,” Kramer explains. He describes the TeenScreen effort as a “massive plan intended to infiltrate every school and mentally screen every kid in the United States.” TeenScreen was a “huge program for psychiatrists, Kramer notes, adding that it was “their massive plan intended to infiltrate every school and mentally screen every kid in the United States.”
According to the “Our Leadership” web page in TeenScreen’s web site:: “The Teen Screen National Center leadership team – working with a National Advisory Council of advocates, physicians, researchers, and policy experts – provides tools and resources for clinicians, parents and community leaders seeking to build awareness for the compelling need for adolescent mental health screenings.”
The Teen Screen National Center also explains that the organization’s members “collaborate with colleagues nationally to advocate for comprehensive and inclusive adolescent mental health policy.”
“TeenScreen was a very controversial national so-called ‘diagnostic psychiatric service,” aka suicide survey; done on children who were then referred to psychiatric treatment. The evidence suggests that the objective of the psychiatrists who designed TeenScreen was to place children so selected on psychotropic drugs.”
TeenScreen was originally investigated and exposed by PsychSearch.net at a time whem there was absolutely no negative information about TeenScreen to be found on the web.
“We were informed about TeenScreen by Sylvia DeWall, a Clearwater event promoter who was alarmed after seeing a TV news report, in which the Florida Mental Health Institute was attempting to implement TeenScreen in Pinellas County schools, writes Kramer. “DeWall’s alarm was justified,” he explains. “TeenScreen’s pharma-connected Director Laurie Flynn had her sights set on expanding the screening program. This was revealed in one of Flynn’s emails to a Florida official, which PsychSearch.net obtained with a public records request.
TeenScreen Executive Director Director Laurie Flynn had clearly her sights set on Pinellas’ kids: “I’m looking for a horse to ride here!” and “I need to get some kids screened,” wrote Flynn by email to Jim Mcdonough, Director of the Florida Office of Drug Control.
Mcdonough is listed as an “advisor” to TeenScreen on its website, and according to Kramer: “TeenScreen gifted McDonough’s office with $180,000 to get TeenScreen set up. PsychSearch.net investigated further, and the resulting expose’ led to “a firestorm of emails to the Pinellas County school district officials from concerned citizens protesting TeenScreen.” This, in turn, resulted in The Tampa Tribune and St. Petersburg Times publishing critical atcles regarding the program. The Pinellas County school board terminated the screening program, booting TeenScreen out of its school system.
The Psychsearch teem reveals also that a company-paid psychiatrist, David Shaffer, is a “consultant” with TeenScreen. He has frequently ligated on behalf of his prestigious clients – giant pharmaceutical companys.
The controversy “was then off to the races” as it “exploded on the World Wide Web and spread across the country spawning media across the country as school after school rejected TeenScreen,” Kramer said.
Kramer managed to gain some strong allies. U.S. Senator Grassley (R-Iowa) sent a letter to several pharmaceutical firms, asking for specific information with the respect to “off label” uses on children. Grassley is also well-versed on the inappropriate medication of excessive numbers of foster children.
According to the June 9, 2008, Congressional Record, Senator Grassley put it on the record that the pharmaceutical firms were not entirey forthcoming to Grassley’s continued requests, saying that big pharma GalaxoSmithKline had “bamboozled” the Senate. Grassley went on summarize, saying: “We cannot live in a nation where drug companies are less than candid, hide information and attempt to mislead the FDA and the public.”
The hearings resulted in the 2010 passage of the “Physician Payments Sunshine Act,” written by Grassley and Herb Kohl (D-Wisconsin). The act requires that drug and medical device manufacturers report gifts and payments made to physicians and teaching hospitals. As of November 2012, the Act had yet to be signed into law, according to a prepared press release from Senator Grassley.
Kramer’s patience, persistence, and tenacity ultimately paid off. Pushing the press to do its job, thus bringing about enough awareness of the program to cause angry parents to protest. Efforts to integrate it into any school system at all will likely bet met with similar resistance.
“We dealt TeenScreen various fatal death blows from which it never recovered and that ultimately led to its demise, Kramer writes. On Google, he explains, “we never relinquished the top 2 or 3 spot when searching for TeenScreen.” The group also “worked with the press across the country and had a massive number of stories published.” In turn, the group informed schools, who thereafter blocked the TeenScreen program.
Kramer offered thanks to the legal team at the Rutherford Institute, writer Evelyn Pringle, the Eagle Forum and “all those groups from many walks of life, nationwide, who fought this.”
For more information, see: psychsearch.net..
There is a fine line between Unfounded and Inconclusive determinations. An Inconclusive determination automatically places an offender’s name on the Child Abuse Central Index without conclusive evidence and a legal framework to ensure due process. This may give the appearance of “guilty until proven innocent,” contrary to legal tradition.
–Solano County Grand Jury
California’s Child Abuse Central Index, or CACI, as it is commonly called, has been the subject of countless reviews, investigations, Grand Jury reports, and lawsuits. Yet, nothing ever seemed to change. At least not in a manner that would have meaningfully impacted the estimated 800,000 people whose names were listed on the Registry. Maintained by the California Department of Justice, the Registry “is not actively managed by the State. It is not routinely purged of erroneous or unsupported entries.” Individual reporting agencies hold the responsibility for updating the database, something that they have historically been reluctant to do.
Among the more recent examinations of California’s Child Abuse Registry were those of two Grand Juries. In its report, entitled Health And Social Services Child Abuse Reporting, the 2008-2009 Solano County Grand Jury explored these issues, following up on prior reports that it had issued. Thereafter, the 2009-2010 Orange County Grand Jury followed up with a report of its own, ominously entitled CACI: Child Abuse Central Index: Guilty Until Found Innocent.
A VICTORY FOR FAMILIES
On October 14, 2011, Governor Edmund G. Brown Jr. signed into law Assembly Bill 717, introduced by Assemblymember Tom Ammiano (D-San Francisco) amending the Child Abuse Central Index. The newly revised statute went into effect on January, 1, 2012.
The Act was amended to include only “substantiated” claims of abuse or severe neglect. According to the Act, an agency “shall forward to the Department of Justice a report in writing of every case it investigates of known or suspected child abuse or severe neglect that is determined to be substantiated,” with the clear proviso that an agency “shall not forward a report to the Department of Justice unless it has conducted an active investigation and determined that the report is substantiated,” as defined in the revised Code.
The revised legislation states also that: “If a report has previously been filed which subsequently proves to be not substantiated, the Department of Justice shall be notified in writing of that fact and shall not retain the report.”
Much to their credit, both the Solano and Orange County Grand Juries went to great lengths in conducting their investigations, as the Orange County report explains:
The Grand Jury completed its study through interviews with Hot Line staff and emergency response investigators at Children and Family Services as well as in-depth discussions with the administrative and program leadership of the agency. The Grand Jury interviewed local police agencies and reviewed their policies and procedures. The Grand Jury obtained CACI definitions and requirements from the state Department of Justice and reviewed internal reports and documents issued by CFS and local police agencies. Additionally, the Grand Jury reviewed all appropriate state and federal guidelines regarding Child Abuse Central Index and reports published by prior California Grand Juries.
The extent to which these two critical reports may have played a decisive role in the passing of the legislation is a question best left open for historians, however the arguments they set forth are worthy of review by advocates seeking similar reforms in their own states.
SOLANO GRAND JURY FINDINGS
Individuals whose names appear on the Registry often appeal the placement, however the appeal may or may not result in removal from the list. The Solano County Jury notes that it can be difficult and expensive to challenge a listing. During the timeframe of July 2006 to December 2008, Solano County residents listed on the Registry were only successful in challenging their listings between 10 to 50 percent of the time.
As the Solano Grand Jury explained, following an investigation, and using the information gathered, the Social Worker “makes one of three determinations” as defined in the California Penal Code:
Unfounded: The report is determined by the investigator who conducted the investigation to be false, inherently improbable, to involve an accidental injury, or to not constitute child abuse. The person’s name is not submitted to be listed on CACI.
Inconclusive: A report is determined by the investigator, who conducted the investigation not to be unfounded, but the findings are inconclusive and there is insufficient evidence to determine whether child abuse and/or neglect have occurred. The person’s name is placed on the CACI list and remains for 10 years (if no further incidents occur).
Substantiated: The report is determined by the investigator who conducted the investigation to constitute child abuse and/or neglect. The person’s name is permanently placed on the CACI list.
Part of the problem are the burdensome and often-contradictory regulations that come with shifting mandates. The practical effect of all this, as the Jury explained, is that: “CPS does not have investigative manuals designed to teach and direct Social Workers in their duties and responsibilities in Solano County. The materials used by CPS comprise many binders containing broad guidelines provided by the State of California and the Northern California Training Academy. They are designed to assist employees and are not meant to be specific to Solano County. The manuals are voluminous, sometimes vague, and confusing. A reader would have to spend hours in researching a single subject.”
This is not the first time that Solano County’s Grand Jury had visited this particular issue. The 2008-2009 Jury echoed the findings of some of its prior reports:
There was an absence of manager signatures on reports documenting managerial review, decisions, and/or approval
When Social Workers prepared their reports based on their observations in the field, the content of the reports were sometimes altered by the supervisors and/or managers; consequently, Social Workers were given the option to refuse to sign altered reports or clarify in court testimony that they did not personally write portions of what might be viewed as evidence
There was confusion on the part of CPS staff regarding procedures and policies
There was oversensitivity to negative feedback
There was a lack of mutual accountability and teamwork at all levels
CPS has continued to demonstrate an inability to self-correct, although there have been internal and external attempts to correct these deficiencies; its organizational culture is subverting the achievement of the CPS mission.
The Jury found instances in which people who had not even been interviewed were nevertheless placed on the Registry, or who may not have been informed of an impending listing, or of their right to appeal. As the Jury concluded:
There is a fine line between Unfounded and Inconclusive determinations. An Inconclusive determination automatically places an alleged offender’s name on the Child Abuse Central Index without conclusive evidence and a legal framework to ensure due process. This may give the appearance of “guilty until proven innocent,” contrary to legal tradition.
For many years, family and child advocates have asserted that the presumption of innocence is turned upside-down when it comes to child abuse investigations. Many assert that this presumption of being “guilty until proven innocent” runs throughout the entire fabric of the child protection industry; from initial investigations through removals, as well as through the various stages of administrative and legal proceedings that may follow.
ORANGE COUNTY’S EXAMINATION
In 2009, “Orange County added the names of 792 county residents to the state list of child abusers based on investigations that did not establish sufficient evidence to say that abuse had occurred. The names of the accused were sent to the Child Abuse Central Index (CACI) in an Inconclusive category. Those accused with an inconclusive report can remain on the list for 10 years from the last report,” begins Orange County’s Grand Jury Report.
As is the case in all of California’s Counties, the information is maintained in a centralized location by the state’s Department of Justice, and this information “is made available to employers who have interaction with children, including schools, law enforcement, child welfare agencies, foster homes, adoption agencies, and licensed child care homes.”
The Orange County study explains that the “process and guidelines for placing someone on the Child Abuse Central Index based on an Inconclusive finding are confusing, highly subjective and provide little protection for those individuals falsely accused of abuse.” More to the point, the report came to the critical finding that:
The California Penal Code requires that a result of an Inconclusive finding be reported and placed on the Child Abuse Central Index because there is insufficient evidence to make a determination of whether abuse occurred.
This represents a confict with the American legal principle of innocent until proven guilty.
The Jury notes that there are “numerous examples” in which a court finding in favor of an accused did not result in removal of the name from the Registry. Children and Family Services is not required to respond to a court action, the Jury explains, and the agency may on its own determine that there are other reasons to retain the name on list. Since Registry listings can be made without a criminal complaint even being filed, “there is no opportunity for the accused to prove innocence in a court of law.”
THE CANRA TASK FORCE
It was an Assembly Bill during California’s 2001-2002 legislative session that eastablished the the Child Abuse And Neglect Reporting Act Task Force, which came to be commonly known as the CANRA Task Force. The report itself candidly explains that: “Calls for legislative reform, as well as litigation, were the impetus for the creation of the CANRA Task Force.”
By the time the Task Force came into being, Californians had been impacted by the state’s reporting laws for forty years. Efforts at reforming the laws in the legislature failed to gain ground, hence a compromise measure was reached establishing the Task Force.
California’s Child Abuse And Neglect Reporting Act was “premised on the belief that reporting suspected child abuse is fundamental to protecting children.” The legislative purposes behind the Act are: (1) to identify child abuse victims for early intervention and protection by public authorities as early as possible; and (2) to provide “an important source of information assisting local law enforcement officials and child protective agencies in identifying, apprehending and prosecuting child abusers.” The statutory procedures for reporting have been deemed by California courts as being “essential” in accomplishing these goals, the report explains.
So, what exactly was the problem? In short, that there was a broad and grey area between a finding of “substantiated” and “unsubstantiated.” By definition, an “inconclusive” report “is one that is not unfounded but in which the findings are inconclusive and there exists insufficient evidence to determine that child abuse or neglect occurred.”
As 0f 2004, the Index contained approximately 905,000 entries, listing about 810,000 suspects, and 1,000,000 potential victims. Per year, California’s Department of Justice received approximately 35,000 new reports to be added to the Index; some 10,000 inquiries for investigative purposes; and 40,000 inquiries for non-investigative functions.
“Although the Task Force followed its mandate to review the value of the Index in protecting children, the most prevalent calls for change were from individuals whose names had been placed on the Index as suspects,” the Task Force found.
“Additionally, individuals who believed their names had been unfairly placed on the Index as suspects contended that their inability to challenge placement of their name before being listed and their inability to remove their names afterwards, without expending significant monies on attorneys, amounted to a violation of their due process rights.”
One of the key findings of the Task Force was the wide discrepancies between Counties and how or whther they provided any avenue of due process to challenge a listing on the Registry:
Due to the expense and complexity of private litigation options, leaving such as the sole method to address due process concerns places an enormous hurdle before all suspects wishing to challenge a CACI listing and makes such a challenge all but impossible for low or moderate income suspects. The law already requires notice to suspects, but then provides no method to act on that notice if a suspect believes that the government’s action is inappropriate. While some counties appear to have informal mechanisms to address requests for listing removal, most do not appear to have such. In fact, it appears that there are still counties in which the notice requirement is not effectively in place. Such inconsistent access to process, ifthere is process at all, does not square with the concept of fairness and calls for some type of consistent, statewide process to be in place to address this issue.
The Task Force is concerned that a suspect’s county of residence should not determine the level of process available. The Task Force also believes it is unfair for residents of one county to have access to a governmental review at little or no cost as residents of another county are required to hire expensive counsel and file suit to obtain review.
In summary, while the Task Force made a few worthwhile recommendations, precious little meaningful change came of the effort. For historical purposes, its work perhaps stands as a highly detailed model of how not to run an abuse Registry.
As harmful as the Child Abuse Central Index may have been, it nevertheless enjoyed a remarkable resilience, having withstood several legal challenges.
In a case that gathered media attention, Catherine Donahue Burt, a chronic sufferer of migraines who took regular injections of Demerol, realized that her syringe had slipped out of her pajama pocket as she was putting her baby to sleep. She frantically called 911 for help.
“Paramedics and emergency-room doctors later determined that no Demerol had gotten into the baby’s system, according to Knight-Ridder News Service.
“But nearly a year later, Burt said she regrets making that call.”
It wasn’t so much that the police placed the child in the County’s “temporary custody pending completion and review of a full investigation of the incident” that did it. Two days later, the child was returned unharmed. Rather, Burt was informed that the result a “probe” by the County determined that her name was to be put on the Registry, without any recourse for an appeal.
Burt, herself a pharmacist, and her husband, a decorated navy pilot, fought to clear her name, and on June 30, 2004, victory arrived in the form of a Court of Appeals ruling that held that under the Constitution, “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.”
This was the first of the meaningful legal challenges to the Registry.
On July 27, 2004, the Orange County Board of Supervisors, in a closed-door session, by a vote of 3 to 2, voted to authorize “County Counsel to file a petition for review in the California Supreme Court in the case of Catherine Dohahue Burt v. County of Orange, et al.” Supervisors Wilson, and Silva voted in favor, and Supervisors Norby and Campbell voted against the proposal.
On December 6, 2005 — also during a closed-door session — the Orange County Board of Supervisors did a remarkable about-face, and in consultation with County Counsel unanimously approved a settlement in the Burt case.
Burt v Orange County was followed by Gomez v. Saenz. That lawsuit originated in July 2004, and it was settled on October 9, 2007. The suit addressed the rights of individuals whose names either are — or will be — listed on the California Child Abuse Central Index.
Based on the settlement agreement, beginning March 1, 2008, individuals were to be provided appropriate notice of their CACI listing, as well as of their right to appeal the listing via an administrative grievance proceedure. In addition, the settlement allows individuals who may not have received a notice of their right to appeal prior to March 1, 2008, to challenge their continued listing on the CACI.
According to a Procedural Guide issued by the California Department of Social Services, keeping up with the legislative and judicial changes was becoming a fulltime job in and of itself, requiring several revisions to operating manuals along the way. The Guide explains:
Previously, in response to Burt v. County of Orange, DCFS established a process for individuals, who believe that DCFS incorrectly reported them to the Department of Justice or that their name was listed on the Child Abuse Central Index in error, to challenge DCFS’ action. However, because of the Gomez v. Saenz lawsuit, that process has been revamped to meet the requirements of the lawsuit settlement.
According to the updated procedures, under the terms of the Gomez settlement, the grievance officer conducting hearings challenging a listing on the Registry shall be:
A staff or other person not involved in the investigation of the alleged child abuse or severe neglect.
Neither a co-worker nor a person directly in the chain of supervision of any of the persons involved in the investigation of the alleged abuse or severe neglect unless the grievance officer is the Director or Deputy Director of DCFS.
Knowledge in the field of child abuse or neglect investigations and capable of objectively reviewing the complaint.
TAKE A LETTER, MARIA:
THE NUTS AND BOLTS OF IMPLEMENTING GOMEZ
In a letter addressed to all county directors on the state’s Department of Social Services letterhead, Mary L. Ault, Deputy Director of the Department’s Children and Family Services Division, informed one and all of the changes that the Gomez settlement would bring to day-to-day operations.
The letter, dated December 28, 2007, was addressed to All County Welfare Directors, All Child Welfare Services Program Managers, and Chief Probation Officers. The letter explained that:
The Gomez v. Saenz lawsuit originated in July 2004, and was settled on October 9, 2007. The lawsuit addresses the rights of individuals whose names either are or will be listed on the CACI. Based on the settlement agreement, beginning March 1, 2008 individuals are to be provided appropriate notice of their CACI listing as well as the right to appeal. In addition, the settlement allows individuals who may not have received a notice of their right to appeal prior to March 1, 2008, to challenge their listing on the CACI.
There were specific public notification requirements. Child welfare agencies and Community Care Licensing Division offices were “required to post for 30 days (in a prominent manner in locations to which the public has regular access) a notification informing the public of their right to determine whether or not their name is listed on the CACI.”
These notifications were to be distributed prior to March 1, 2008. In addition to the posting of notifications, the settlement required publication of the same information in both English and Spanish newspapers that had widespread circulation.
The purging of the Registry itself was to begin immediately. Also to be purged were those files “where no underlying files exist,” such as those that may have been destroyed as a result of floods or fires. (The true extent to which the estimated 800,000 files may have sat on the Registry without any supporting documentation may never be known.) The letter also specified the timeframes required for the great purge to begin:
“Because this is a legal settlement with specific requirements,” the leter explained, “the activities must be carried out as specified in the settlement. It is important that the implementation of the activities is carried out in a consistent manner throughout the state in order to assure accurate notification and purging of unsupported CACI listings.” The timelines for settlement activities follow:
Begin purge process to remove from the CACI those names or dates for which supporting documentation is unavailable.
March 1, 2008
Post and Publish notifications of individual’s right to determine CACI listing and to
request grievance hearing
September 1, 2008
Survey to begin in 12 counties as noted in the settlement.
More detailed instructions regarding implementation were said to be forthcoming, and were to include “the required noticing forms and grievance procedures, as well as Q & A from the counties.”
THE CONSTITUTION, DUE PROCESS, AND
CHILD WELFARE WORKERS
By May of 2009, the Central California Training Academy at California State University, Fresno, had established the Gomez vs. Saenz Settlement: Training for Child Welfare Workers & Supervisors. Much to their credit, the designers of the curriculumn devote attention to the civil liberties that most citizens take for granted.
In a section of the training module under the heading “The Constitution, Due Process, and Child Welfare Workers,” Constitutional protections against government actions are specifically explained to trainees, including the provisions of the Fifth and Fourteenth Amendments to the Constitution.
“The actions taken by child welfare services workers often affect people’s liberty rights,” the training module explains, citing as examples:
Parents have the liberty right of freedom of personal choice in matters of family life, including the right to raise their children.
Children have the liberty right to grow up in a permanent, secure, stable and loving environment, free from abuse or neglect.
A person accused of abuse or neglect has the liberty right to ensure that his or her “good name” and reputation are not stigmatized by false information maintained by the government, where it is likely that members of the public will see the damaging information.
The training module clearly explains the rationale underlying due process:
Remember what the framers of the Constitution had in mind when they created the Constitution — protecting the people from abuse by their government. Therefore, the due process protections set forth in the Fifth and Fourteenth Amendments to the Constitution are intended:
To protect individuals from unwarranted or arbitrary governmental intrusion.
To prevent the government from abusing its power over individuals.
After continuing on to describe the concepts of due process, substantive and procedural — including such vital elements as being provided with notice and having a meaningful opportunity to be heard — the training module hammers the point home to case workers and other child protection personnel in training, emphasizing:
You work for the County. California’s county governments are considered subdivisions of State government. Bottom line:
YOU represent the GOVERNMENT!!
THE LUCRATIVE INDUSTRY OF REFORM
The Bay Area Training Academy, operated by San Francisco State University, put together a similar curriculum, featuring a two-day conference to be held on December 2 and 3, 2008, on the topic of “Gomez v. Saenz Hearing Officer Training.”
The first day focused on “background information and history on Gomez, during which Diane Brown and Mary Shepard, both of the Department of Social Services, were to “present an overview of the implications of Gomez including regulations and implementations.
Attendees on the second day of the conference were in for a treat. Not only did they enjoy a continental breakfast, but they were also treated to a seminar provided by Honorary Jose Banuelos, Presiding Administrative Law Judge of the Fresno Regional Office. The event was held at the Contra Costa Social Services Department, in Hercules, California, and the day two conference was restricted to hearing officers only.
Such training doesn’t come cheap, in the child welfare industry. A memorandum sent out on City and County of San Francisco Human Services Agency letterhead, dated September 18, 2009, indicates that the Bay Area Training Academy had been awarded a generous grant of $2,547,626 for training provided between July 1, 2006 through December 31, 2009. The substance of the letter was such that a modest increase of $76,660 was to be alloted to the Academy, bringing its total for training to $2,624,286.
The money was “for the provision of training services and curriculum development for the ‘Strengthening Families, Community and Neighborhood Deciding as One’ initiative; and, training and consultant services for Family and Children’s services to ensure compliance with the Gomez v. Saenz Grievance Process, in the amount of $76,660 for the period of October 1, 2009 to December 31, 2009.”
CACI: Child Abuse Central Index, Guilty Until Found Innocent, Orange County Grand Jury 2009-10.
Health and Social Services Child Abuse Reporting, 2008-09 Solano County Grand Jury.
Burt v County of Orange(2004) 120 Cal.App.4th 273, 15 Cal.Rptr.3d 373, review den. Sept. 15, 2004.
Humphries v Los Angeles, 554 F. 3d 1170, Court of Appeals, 9th Cir.
The Government Accountability Office reported that in 2003, American Indian children represented about 3% of total number of children in foster care in United States, but only 1.8% of total population under age of 18. The GAO Study also revealed that in five states, at least one-quarter of the foster care population was American Indian. It also reported that few empirically validated studies on the effectiveness of the ICWA are available, in part because many states fail to maintain accurate records tracking cases to which the ICWA applies.
“Notwithstanding the fact that the Indian Child Welfare Act (ICWA) was passed in 1978, full compliance with the Act remains elusive,” the Washington State Racial Disproportionality Advisory Committee explains in a report issued in January 2010.
Regarding the status of the nationwide implementation of the ICWA, the report explains: “A literature review found no articles or research on the impact of state ICW legislation on the disproportionality of Indian children in the child welfare systems. Follow-up phone calls to American Indian Child Welfare managers in Iowa and Nebraska indicated that they did not have internal processes to track and analyze data related to disproportionality. The Native American Rights Fund and National Indian Child Welfare Association were also unaware of any formal or informal research or studies, outside of Washington State, regarding strategies to reduce disproportionality of Indian children in child welfare systems.”
“Too many Native parents face extraordinary hurdles in keeping their children—including cultural misunderstandings and legal barriers that are unimaginable to many non-Native people. In this second decade of the 21st century, American Indian children in states across the country are still taken from their families and placed in foster care or adoptive homes at a much higher rate than those for other kids—just as they were before the passage of the 1978 Indian Child Welfare Act (ICWA), a federal statute intended to help keep Native families intact,” Stephanie Woodard explains in a recent article in Indian Country.
Woodward has some statistics at hand to back her claims: “In Alaska, Native children make up 20 percent of the child population but 51 percent of those a state agency has placed in foster care; Montana, Nebraska, Oregon, Utah, North Dakota and Washington also have similarly skewed ratios. In Minnesota, the percentage of Native children in foster care is high, and it’s gotten worse in recent years. Disproportionalities exist nationwide at every stage in the process, starting right from the initial reports of possible abuse or neglect of a Native child.”
The most recent information on disproportionality is to be found in a study released by the National Council of Juvenile and Family Court Judges in May 2012. The study found that: “Across the United States, Native American children are overrepresented in foster care at a rate of 2.1 times their rate in the general population. While not all state show disproportionality, 21 states do have some overrepresentation. Twenty-seven percent of the states that have overrepresentation have a disproportionality index of greater than 4.1. In Minnesota, the disproportionality is index 11.2, in Washington State it is 5.6.”
“An alarming figure illustrates that Nebraska has the second-highest imbalance in the country when it comes to the number of Native American children in the state’s foster care system. Though Native Americans make up roughly one percent of Nebraska’s population, native children represent eight percent of the total number of children in foster care,” Nebraska Appleseed reports.
In 2008, Nebraska Appleseed joined with tribal leaders, the Indian Child Welfare Program Specialist for the Nebraska Department of Health and Human Services, Legal Aid of Nebraska’s Native American Program, and other advocates to create the Nebraska ICWA Coalition. The Coalition, together with a number of tribal representatives, family members, and other advocates, participated yesterday in a Legislative interim study held in Macy on the Omaha Reservation.
“The purpose of the Coalition is to identify ICWA issues within Nebraska’s county and juvenile courts with the goal of working together to resolve any concerns,” explained Staff Attorney Robert McEwen during his testimony.
“The Nebraska ICWA Coalition has compiled a list of culturally appropriate social services and has conducted various ICWA trainings for attorneys and case professionals across the state, including recruiting and training qualified expert witnesses as required under ICWA. Nebraska Appleseed, in cooperation with the Nebraska ICWA Coalition, has filed two amicus briefs before the Nebraska Supreme Court in cases involving the interpretation of key components of ICWA,” McEwen added.
The ICWA Coalition presented a preliminary set of recommendations to improve ICWA in Nebraska during the hearing.
Appleseed has been among the forefront of those advocating for the rights and needs of foster children in the face of privatization in the state of Nebraska.
From Charleston, South Carolina, comes the news of a contentious legal ruling that sent a Native American girl back to Oklahoma from her adoptive family. The South Carolina Supreme Court ruled in July that the 2-year-old should be returned to her biological father, a member of the Cherokee tribe. It was the court’s first decision weighing state adoption laws against the Indian Child Welfare Act. The case is being appealed to the U.S. Supreme Court.
ARIZONA TAKES OFF ITS’ RAINBOW SHADES
According to a 2002 study, Arizona appeared to be making efforts to comply with the terms of the Indian Child Welfare Act. However, while tribal attorneys reported that they were somewhat to very familiar with ICWA requirements, “three fourths (73%) believed that ICWA did not do enough to protect the rights of Indian children and tribes.” In contrast, only 43% of tribal judges were of this opinion.
The Arizona Court of Appeals, in an August 28 ruling, upheld a juvenile court decision finding “good cause” to deviate from the Indian Child Welfare Act, Indian News reports. The 2-year-old child – identified only as “Z” in court documents – was “rescued” from his parents’ home at the age of 1 month, according to the ruling.
“It’s contrary to the majority of the cases and of the intention of the act,” said Craig Dorsay, a Portland, Oregon-based attorney who previously worked on the Navajo Nation, and has worked with thousands of ICWA-related cases.
“It’s a concerning case,” Dorsay said. “The majority opinion states what I would call an anti-Indian child welfare case.”
A number of recent appellate cases indicate that the Arizona Department of Economic Security, which administers Child Protective Services programs, has been busily engaged in plucking a disproportionate number of Native American children out of their homes in a complete disregard of federal law. In Devina H. v. Arizona Dept. of Economic Security, the Court of Appeals, in a July 19, 2011 ruling, found that “expert testimony” supported its decision to terminate parental rights.
Before reviewing the testimony provided in the case, let’s review the oft-cited book edited by Steven Unger of the Association on American Indian Affairs in 1977. In “The Destruction of American Indian Families,” the practice of bringing in “experts” to testify as to the Native American parents’ alleged “deficiencies” is reviewed at some length:
The case planning for Indian children is biased from the beginning. Workers tend to place Indian children in non-Indian substitute homes where there is the likelihood that they can remain a long time either through permanent foster care or adoption. This becomes an important factor in the department’s case. It can demonstrate that a permanent, loving, caring home has already been found, and also claim that removal of this child to the questionable home of his Indian parents or relatives would inflict severe, longlasting and traumatic damage to the child. Experts are brought in to testify to the traumatic effects of separation and placement. Parents unwittingly submit themselves to psychiatric or psychological testing paid for by the department to prove that they are unfit, troubled people and parents. The referrals to these psychological experts are made by the department workers who in their letters of referral painstakingly list the parents’ failures. No mention is made of strengths.
And the parents’ rights are terminated.
Bearing this in mind, let us review the Devina H decision. Specifically, the Court of Appeals opined:
The supervising psychologist and the graduate psychology student who administered Mother’s psychological evaluation testified Mother had Bipolar II Disorder and Antisocial Personality Disorder. They both testified Antisocial Personality Disorder negatively impacted Mother’s ability to parent because people with this disorder typically lack empathy, disregard the safety of others, and act aggressively and impulsively without any remorse. Moreover, they testified that although the impulsive, manic, and depressive behaviors associated with Bipolar II Disorder may be regulated with medication and therapy, Antisocial Personality Disorder has no effective treatment. They also testified any CPS services offered to Mother would be futile to treat that disorder and a child in Mother’s care would be “at risk of physical abuse or neglect.”
Antisocial Personality Disorder, indeed. The Tennessee Court of Appeals handily saw through a similar ruse tossed out by the Department of Children’s Services, which claimed “that father’s narcissistic personality disorder was sufficient evidence to support a finding that the grounds for terminating the father’s parental rights” pursuant to the relevant state Codes. Some years earlier, a California court overruled a termination on the same grounds.
In Karen O. v. Arizona Dept. of Economic Security, decided in December of 2011, appellants Jeff O. and Karen O., husband and wife, appealed a juvenile court’s denial of their motion to intervene in the adoption petition of three Navajo children by their non-Indian foster parents. The Navajo Nation moved to stay the adoption petition but was denied, as the Court of Appeals “found that it lacked standing to request a stay in a majority decision on that issue.”
FAILURE TO BENEFIT FROM OFFERED SERVICES
In Karen P. v. Arizona Dept. of Economic Security, decided in February 2012, the Department essentially argued that it had provided reunification services to the mother, which largely consisted of a boiler plate reunification plan, including “referrals for substance abuse treatment, mental health treatment, parenting classes, parent aide services, and visitation.” While the mother did attend visits with her children fairly regularly, “she did not substantially participate in any of the other services offered to her.”
While the mother was apparently reluctant at first to participate, she nevertheless successfully participated in drug testing and became “actively engaged in her substance abuse treatment.” Also, she completed a psychological evaluation and was diagnosed with several disorders including borderline intellectual functioning. Following her evaluation, she began participating in individual counseling, and she continued “to actively engage in services until the severance hearing.”
Following a two-day hearing, the juvenile court found the Department had proven the grounds for termination, arguing that severance was in “the best interests of the children.” (Perhaps to her detriment, the court also found that the Zuni Tribe, through its designated representative, agreed that the Department made active efforts to “provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts were unsuccessful.”)
In Freddie H. v. Arizona Dept. of Economic Security, decided in August 2012, the father made the mistake of refusing the “services” the Department of Economic Security so generously offered. In an effort to implement the case plan, the Department “developed a case plan that offered Freddie various services, including supervised visitation, and parenting, anger-management, and domestic-violence classes.”
Indeed, it is controverted that: “Throughout the dependency, Freddie repeatedly told CPS workers he did not want to engage in services and failed to maintain contact with CPS for months at a time.”
Testimony reveals that Freddie told CPS that “he didn’t need any services, and that he wanted the child placed with his mother.” CPS nonetheless “met with him to formulate a case plan,” offering “to set up drug testing and parenting classes for him,” as well as “to schedule supervised visits with Freddie Jr.” A case worker, however, claimed that she “was unable to reach Freddie in order to implement the visits.”
LEGAL, BUT HAZARDOUS
In Justin C. v. Arizona Dept. of Economic Security, decided in March of 2012, the Department removed a child who was not at home at the time of his Father’s arrest for growing marijuana. (The child was some time later tested as negative.) The Department filed a dependency petition in March 2011, alleging that the child was dependent as to both parents due to substance abuse and neglect. Specifically, the Department alleged the father failed to provide an appropriate home for the child because:
A significant Marijuana Grow was found in Father’s home. Father’s cultivation of the marijuana in the home exposed the child to not only the marijuana, but also the chemicals used and the toxins and molds produced in the operation. Father’s marijuana growing operation also exposed the child to electrical hazards [because] the child slept in the bedroom next to the operation.
At some point thereafter, the father obtained an Arizona medical-marijuana license to legally cultivate, and he resumed using marijuana sometime later. Oddly, the police arrived at his home in June of 2011 “to arrest both parents for the February incident.” Why there was a four-month long delay between the offense and the arrest is not explained.
After the father’s arrest, the Department – presumably just happening to be in the neighborhood anyway – investigated and found the home in the same condition as it was during the February incident. “A strong odor of marijuana permeated the home. Again, Child’s items were found near drug paraphernalia, marijuana plants and chemicals used to produce marijuana. Lamps and electrical wiring from the operation created a fire hazard, which was aggravated by the lack of functioning smoke detectors.”
The Court of Appeals notes that Section 36-2813(C)-(D) of the Arizona law prohibits “discrimination against medical-marijuana cardholders in child-custody proceedings by negating any presumption of neglect or child endangerment for conduct allowed under the license ‘unless the person’s behavior creates an unreasonable danger to the safety of the minor as established by clear and convincing evidence.’”
Notwithstanding that enactment, the presence of paraphernalia, electrical wiring creating a potential fire hazard, and the lack of functioning smoke detectors combined to make the Department’s case for termination.
The Court of Appeals also ruled that because the father’s dependency proceeding was a civil matter, due process did not automatically include the right to confront an expert witness. It held that “the right to confront witnesses belongs solely to the accused in a criminal prosecution,” citing a prior case that held “that a dependency proceeding is a civil matter, so admission of a hearsay report raises no Sixth Amendment confrontation problems.”
In Denese M. v. Aceto, a case decided in July 2012, the Court came out with a ruling that is seemingly at odds with its ruling in Justin C. All parties agreed that the affidavit of Lewis Lane, who claimed he was an employee of the Arizona Department of Economic Security and a “specialist” in the Indian Child Welfare Act, was at issue.
“Lane averred that DES had made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family involved in this case, those efforts were not successful, and that continued custody of the child by Mother or an Indian custodian is likely to result in serious emotional or physical damage to the child.”
It wasn’t only the mother that the “specialist” objected to, rather it was placement with any “Indian custodian.” Perhaps in smelling the proverbial rat, the Court reversed the termination, ordering that the mother be allowed to cross examine the expert as to his qualifications.
THE INCONSEQUENTIAL CLERICAL ERROR
In Henry M. v. Arizona Dept. of Economic Security, decided in July 2012, the Court of Appeals set out the facts of the case, writing:
On December 8, 2009, [Arizona Department of Economic Security] filed a dependency petition alleging three-year-old Gage was dependent as to his parents because his mother, whose whereabouts were unknown, had a history of mental illness and substance abuse, and Henry, who also had a history of substance abuse, was incarcerated. Based on representations made by his maternal grandmother, it was believed Gage was not an Indian child. However, the minute entry from the preliminary protective hearing held on December 15, indicates the juvenile court was advised “ICWA is applicable.” (Emphasis added).
The Court also explained that: “there was no reference to ICWA or Gage’s status as an Indian child at the three subsequent dependency review hearings held in March, July, and September 2010.”
In January 2011, the Department of Economic Security:
filed a memorandum regarding the applicability of ICWA, explaining that based on a clerical error, it had assumed Gage did not qualify as an Indian child, thus resulting in the juvenile court having adjudicated him dependent without notice to the Nation, without findings that active efforts had been made to provide services to prevent the breakup of the family, and in the absence of expert testimony that continued custody would result in serious damage to Gage.
The Department’s “clerical error” only served to forestall the inevitable. Parental rights were terminated, and the decision was upheld on appeal. A close reading of the opinion, however, reveals that there were legal issues that could have – and perhaps should have – been raised on appeal.
A clerical error played a role in Masayumptewa v. Aceto, Arizona Dept. Economic Security, a case decided in March 2012. Due to a miscommunication among parties to the trial, the mother legitimately missed her court date, and her parental rights were terminated by default. A required ICWA hearing had also been passed over. Though the Department argued vigorously against granting a reversal, the Court of Appeals nevertheless granted one.
Jurisdictional confusion has led to “nightmarish results,” explains a recent article in Gonzaga Law Review. By way of offering an example, the authors recount an Arizona ICWA case with several peculiar twists along the way:
In Arizona, a married couple’s four children were held in legal limbo for years while the wife pursued custody first in tribal court, then in state court. The wife, a non-Native, first filed for divorce from her husband, a member of the Hopi Indian Tribe, in Hopi Tribal Court. The tribal court granted the divorce and awarded permanent custody of the couple’s children to the husband. Unhappy with this result, the wife filed a second action for divorce in Arizona state court. The Arizona court, initially unaware of the Hopi court’s previous order, granted temporary custody of the couple’s children to the wife, thereby launching a legal tug-of-war. The husband ultimately regained permanent custody, but only after more than three years of legal wrangling.
In a prior entry, I wrote of a San Francisco Housing Authority employee who turned a qualified Indian family away from housing, saying: “I have been working in the Housing Authority for over 20 years. We do not work with Indians, Indian tribes or the Indian Child Welfare Act. Never have — never will.”
National Public Radio conducted a year-long investigation into the Indian Child Welfare Act, finding that “financial incentives” and “cultural bias” are in effect fueling the foster care system. “Each year, South Dakota removes an average of 700 Native American children from their homes. Indian children are less than 15 percent of state’s the child population, but make up more than half the children in foster care,” the report explained.
Over thirty years have elapsed since the enactment of the Indian Child Welfare Act. While some incremental progress may have been made in some areas, the Act has yet to make a meaningful impact. Study after study reveals that the overrepresentation of children of color in the foster care system remains a problem to this day.
How to purge the child welfare system of its inherent racism and classism, its anti-family bias, its violations of parents’ and children’s rights, its arbitrary decision-making procedures, the incompetence and inefficiency of its staff, its costs, and its mismanagement continues to elude even the most astute of the nation’s acedemics and policymakers.
Creating databases to keep track of accused child abusers sounded like a wonderful idea during the 1970s. So did mandated reporting, and abuse awareness campaigns. What legislators entirely underestimated at the time was the remarkable ability of what was at the time a fledgling cottage industry to blossom into an omnipresent industry that would become truly international in its scope by the mid-1990s.
The sheer number of people listed on the abuse Registries throughout the nation is staggering. As of 2004, California had over 800,000 people listed on its registry as “perpetrators” of abuse or neglect, with approximately 35,000 new reports added to the list annually. 150,000 people are listed on the Illinois Registry, and the state reportedly adds 14,000 new reports to its centralized Registry each year. The number of people on the list in New York State ranges from an estimated low of 1.5 to as many as 2.5 million.
In the 2009 ruling in Humphries v. Los Angeles, United States District Court Judge Jay S. Bybee succinctly explained that even after one or more findings of actual innocence in the courts, one’s name may nevertheless remain on the Child Abuse Registry:
Appellants Craig and Wendy Humphries are living every parent’s nightmare. Accused of abuse by a rebellious child, they were arrested, and had their other children taken away from them. When a doctor confirmed that the abuse charges could not be true, the state dismissed the criminal case against them. The Humphries then petitioned the criminal court, which found them “factually innocent” of the charges for which they had been arrested, and ordered the arrest records sealed and destroyed. Similarly, the juvenile court dismissed all counts of the dependency petition as “not true.”
The judge pointed to a task force report issued in 2004 that suggested that as many as one half of the names 800,000 names on the California child abuse Registry should be purged. The court concluded that: “In sum, we are not persuaded that California has provided a sufficient process for ensuring that persons like the Humphries do not suffer the stigma of being labeled child abusers plus the loss of significant state benefits, such as child-care licenses or employment. The processes in place in California do not adequately reduce the risk of error.”
In 2004, the California Department of Social Services was party to a similar lawsuit. Gomez v. Saenz alleged that names were submitted to the state’s Child Abuse Central Index without the right to challenge the listing. The lawsuit also challenged the accuracy of the information retained on the Registry, saying that a significant number of listings were maintained without adequate information to support the listing. The suit was settled in October 2007, but it wasn’t until September of 2010 that the Department sent a letter out addressed to all agencies in the state explaining the new procedures concerning placement on the Registry, and the revised appellate procedures. Related sections of the policy manual were replaced in their entirety.
In Illinois, a district court judge noted that 74.5 percent of indicated reports that were appealed were eventually overturned by either voluntary withdrawal of the findings, or after hearings by administrative law judges. In a New York case, the court of appeals found a nearly-identical rate of 75 percent, holding that New York State’s “some credible evidence” standard created an “unacceptably high risk of error.”
In describing Dupuy v. Samuels, Redleaf modestly explains neither that she or her law firm filed it; rather she explains that “150,000 Illinois residents filed the landmark case.” She continues on to describe the legal action:
The suit is a constitutional case that challenges several core aspects of child protection investigations as violating the Fourteenth Amendment’s guarantee of due process of law. The challenged policies include the lack of a constitutional standard for determining who is guilty of child abuse, the excruciatingly long hearing delays for people who seek to clear their names, the inadequate notices and information given to persons accused of abuse or neglect to enable them effectively appeal investigative findings against them, and demands made by state investigators that parents or children leave their homes at the outset of investigations, under threats that if they do not do so, their children will be taken into foster care.
In Cavarretta v. DCFS, another Illinois case, the Plaintiff sought to appeal a decision to put his name on the child abuse Registry. He eventually received a letter from the Department that read:
Due to the numerous requests for administrative hearings that this office receives, we will not be able to schedule your requested hearing for several months. However, approximately one month before the hearing is scheduled, someone from this office will either contact you or send you a notice concerning the scheduling of the hearing.
On considering the inordinately long delay, the Court ruled: “We determine that a 299-day delay in providing a hearing, a 9-day delay in issuing a final decision, and a 598-day delay in completing the appeals process is a gross deviation of the established time limits and thus a violation of the plaintiff’s due process rights.”
In New York, the Second Circuit Court of Appeals in Valmonte v. Bane found it “staggering” that an estimated 2,000,000 names were listed on the state’s child abuse Registry. Even more troubling was that 75 percent of those who sought expungement of their record were ultimately successful. The court noted that: “We find it difficult to fathom how such a huge percentage of New Yorkers could be included on a list of those suspected of child abuse and neglect, unless there has been a high rate of error in determinations.”
That was in 1994. As of today, New York’s Central Registry is facing yet another challenge.
Finch v. State, filed in February of 2004, challenged the substantial delays in scheduling hearings. As appeals took years to complete, many people who were awaiting a “clearance” from the Registry lost job opportunities. “These delays were particularly troubling since 60% -70% of people who eventually received their hearings were exonerated,” attorney Thomas Hoffman explains.
Judge Shira Scheindlin of the Southern District of New York, in certifying the case as a class action, noted that the wait time for appeals ranged from a low of three months to several years. Trial was scheduled to begin in March of 2010. However, before the trial was to begin, a concerned whistle blower came forward, and it came to light that many cases had simply been run through a paper shredder, as the Department of Social Services sought to clear its docket of backlogged appeals.
During the early 1990s, over 100,000 names were listed on the child abuse Registry in Colorado; and by the mid-1990s about 5,400 Utah residents were on that state’s list, Of those, only about 1,290 were actually taken to court, while the other 4,100 had never had due process hearings. It was unknown how many of them even knew that they were on the list.
Due process issues arose as a major concern in an audit of the Colorado Registry. The audit identified 191 people whose Judicial records indicated that they had been acquitted of child abuse charges, but were nevertheless listed on the Registry as “perpetrators” of abuse. The audit explains: “The Central Registry is a civil, rather than a criminal, tracking tool. Individuals do not have to be charged with or convicted of a crime in order to be listed on the Registry as a perpetrator of child abuse. As such, assurance that alleged perpetrators have the right to challenge Central Registry actions is extremely important. Central Registry of Child Protection statutes contain due process elements that protect individual rights.”
During his testimony before the Utah Legislature, a man said that he’d been placed on the state’s Registry a full five years before he’d learned about it. A woman said that she didn’t know she was on the list until she applied to host youths who would be visiting Utah for a few days. She was turned down, and she told lawmakers that she was never able to determine what allegations led to her placement on the list. In reporting on these events, Deseret News reporter Lois Collins commented:
In a land whose laws are based on the premise that one is innocent until proven guilty, the data base carries no guarantee of due process. And someone who wants to clear his name must go through a cumbersome process that may ultimately require a lawsuit — with no guarantees that will work, either.
Missouri’s legislators are aware of similar problems. Senator Peter Kinder assumed the dais as President Pro Tem of the Senate, addressing its members explaining that he had appointed a special committee and charged it with investigating the policies of the Division of Family Services. In St. Louis, his committee heard four-and-a-half hours of testimony from witnesses; in Kansas City, they heard three-and-a-half hours of witnesses; and in Springfield, his committee convened at 6 p.m. for its third hearing. Six and a half hours and 83 witnesses later, the hearing adjourned at 12:30 a.m. This was followed by another all-afternoon hearing in the Senate lounge. Senator Kinder said:
If I may summarize what we heard, in 18 hours of hearings, it was an astonishing outpouring of anguish, tears, bitterness, frustration and despair. We heard witness after witness tell us that our current system has ruined lives, trampled on constitutional rights and torn families apart. Most of this was confirmed by the inquiry launched by the governor’s study and included in their report. Children who should be removed from homes weren’t, while other children, who should remain in an intact family, were ruthlessly taken and placed into foster care. The testimony was so lopsided against our system, including DFS, judges and juvenile officers, that had our hearings been a prize fight the referees would have stopped it.
Mildred Jamison and Betty Johnson came to understand Missouri’s child abuse Registry all too well, having taken their case all the way to the Missouri Supreme Court. Ms. Jamison was the founder and CEO of Faith House, and Betty Dotson was a nurse employed there. All it took to set their nightmares into motion was an anonymous call to the hotline, alleging that they had negligently failed to supervise the children in their care.
After four years of navigating the labyrinth of administrative and legal proceedings, the state’s Supreme Court at long last ruled in their favor. Judge Laura Denver Stith wrote the opinion for a unanimous Court, explaining: “This Court holds that individuals subject to having their names included in the Central Registry have a constitutionally protected liberty interest because the dissemination of their names from the Central Registry creates a stigma damaging to their reputation and effectively precludes their employability in the profession of their choosing.”
As of late 2011, between 50,000 – 60,000 Iowa residents were listed on the state’s Registry. About 8,890 abuse reports were “founded” by social workers over the course of the year, adding to the numbers. About 1,270 people filed appeals. Of those, 109 were from a finding of “not confirmed.” The remaining 75 percent to 80 percent were settled, the most common finding being that the abuse is “confirmed,” but not listed on the registry. The state’s legislators were well aware of the problems, as Lee Rood, reporting in the Des Moines Register, explains:
Legislators and parents have complained for years that people whose names are placed on the registry have few due-process rights. It takes no conviction in court to end up on the registry – only a finding by DHS staff that it was “more likely than not” that the person neglected a child or, in a much smaller number of cases, abused a child.
What kind of cases are included in the Iowa child abuse Registry? Consider the case of Joy Brown, who was declared to be “an exemplary parent” by agency officials. Her son wandered away from the house, and as a result her name wound up on the list. By the state’s reasoning, because she had “allowed” her son to wander alone on a road, jeopardizing his safety, her case was cast as a “denial of critical care.”
As of early 2012, legislation was being discussed in the Connecticut General Assembly that would offer some relief to the estimated 90,000 people listed on its Registry, As Associated Press writer Shannon Young explains:
Currently, anyone identified as a suspect in Department of Children and Families investigations of child abuse and neglect is listed in a registry for such offenses, even if the individual is not convicted of a civil or criminal offense. Those listed in the registry can initially appeal the listing and can appeal it in court, if necessary.
There’s just one catch that comes with that approach. Young explains that “if they lose the appeal, they are permanently placed in the DCF child abuse database.”
Thomas DeMatteo, assistant legal director for the agency, did not produce a precise figure. He did say, however, that around 30 percent of all alleged offenders who appeal their listing are successful in removing their names from the registry.
As of 2012, some 83,917 Kentucky residents were listed on the state’s abuse Registry. As of 2010 North Carolina’s Registry held about 8,000 names, while Pennsylvania’s registry held 112,580 names.
Our journey begins in Louisville, where a Sunday school teacher found his name in and among those 80,000-plus entries. The teacher, described only as “W.B.” in court filings, was appalled to learn that his name was to be included on the state’s child abuse Registry because of an accusation for which he was never charged.
He feared that being listed would cost him his teaching position, as well as his reputation, so he demanded a trial by jury. A Jefferson Circuit Court judge and the Kentucky Court of Appeals ruled against him. He currently has an appeal pending before the Kentucky Supreme Court.
In the legal challenge raised in North Carolina against the policies of the abuse registry, the state’s Court of Appeals found in 2010 that as the statutory procedures for placing an individual on the Registry deprive individuals of due process, “they are unconstitutional under the North Carolina Constitution.”
Nearly 88 percent of the names listed on Pennsylvania’s registry were there based solely on the decisions of social workers. State welfare officials said that people are afforded due process through appeals, and that letters are automatically sent to abuse suspects notifying them that their names are being put on the registry. An officer from the department’s Bureau of Hearings and Appeals decides the contested cases.
In 1996, the seven judges in the Maryland Court of Appeals unanimously ruled that accused people have the right to a full-blown administrative hearing, complete with witnesses and evidence, when their names are put on the state’s registry. At the time, the Registry held the names of 12,500 people, many of whom had been determined by social workers to have cases in which some “credible evidence” was found to back up abuse claims.
The reform, however, was short lived. Another Maryland case involving the state’s Registry was decided in 2012, with the Court of Appeals writing that the state regulations at issue “perpetrate an injustice.” The regulations, the Court concluded, are “incompatible” and “inconsistent” with Maryland laws concerning child abuse allegations.
The case stemmed from a Baltimore City Public School teacher and paraprofessional having been independently accused of abuse. They were “investigated” and tagged with an “unidentified unsubstantiated” determination. They appealed. When the Baltimore City Department of Social Services refused to hear their appeal, the law firm of Kahn, Smith and Collins, at the behest of the Baltimore Teachers Union, filed suit on their behalf. The decision issued by the Court of Appeals noted that the challenged regulations were “untenable,” “illogical,” and oxymoronic.
Elsewhere, the Athens Daily News reported: “The Georgia Supreme Court ruled that the state’s child abuse registry is unconstitutional, upholding the decisions of two lower courts.” The 1998 decision struck down the statewide Registry on Constitutional grounds. It had collected over 73,000 names since its inception in 1991.
Prior to that, a Virginia Court ruled that the state’s Department of Social Services had to purge its child abuse Registry of all those individuals who had been listed in the systems as “reason to suspect.” The category covered those who were suspected – but not convicted – of child abuse.
By 1989, Florida’s teachers were growing weary of the false allegations. About that time, 211,000 names were on the Sunshine State’s abuse Registry. An attorney with the Florida Teaching Profession-National Education Association said that eight school employees had filed lawsuits seeking to have their names removed from the child abuse Registry, and another fifteen were planning to file similar suits.
During task force hearings, Florida’s legislators heard about a kindergarten teacher who was near retirement who wound up being listed among “confirmed” child abusers on the Registry. They heard of a father of seven – twice named teacher of the year – who brought clothing in for a needy student, only to find himself on the list as a result. Fifty seven Dade County teachers faced abuse accusations after breaking up fights. For those who could afford them, appeals could easily run into the thousands of dollars, and may take several months to complete even as a is teacher suspended awaiting the outcome.
At time went by, the Orlando Sentinel reported that 57 percent of “confirmed abusers” who took their case to an administrative hearing officer had their findings overturned, their names ordered off the Registry. Newspapers in Jacksonville and Fort Lauderdale reported that as many as 92 percent of appealed cases were overturned over a six month period.
“It has been more than a decade since Child Protective Services entered Gary and Melissa Gates’s home in the Houston area and removed their two biological children and 11 adopted ones, after an allegation that the pair had emotionally abused one of the children. Within three days, a judge had returned all the children to their parents; within eight months, the child welfare agency had dropped its case,” writes New York Times reporter Emily Ramshaw.
The Gates family is not alone. They share their few kilobytes of disk space in the Texas child abuse Registry with a half-million other people.
What makes their case unusual is that the family is well-to-do financially. “From my side of the socioeconomic scale, this is nothing you’d ever think would happen,” said Mr. Gates, who has spent “well north of $500,000″ trying to get off the registry and to hold Child Protective Services accountable. “The reality is, very few people have the emotional and financial fortitude to fight this.”
Ramshaw explains that “the confidential registry is made up largely of people who are not convicted criminals or registered sex offenders. It contains the names of more than 500,000 people — 5,700 of them ages 10 to 17 — who state investigators have found ‘reason to believe’ sexually abused, physically harmed or neglected a child.”
Only one third of those who appeal their cases are successful, while the remainder may pursue administrative appeals through the State Office of Administrative Hearings — a process that “can take years because of a shortage of lawyers in the Department of Family and Protective Services’ legal division.” At the end of 2010, more than 2,100 people were awaiting administrative reviews. More than 1,000 of them had been waiting for over a year, and nearly 200 had been waiting three years or more.
As of April 2011, the couple remained on the Texas Registry after having lost an administrative appeal that they’d waited over eight years for.
Approximately 40 States, the District of Columbia, American Samoa, and Guam have provisions in their statutes for the expungement of child abuse and neglect reports. Statutes vary widely as to the standards of evidence and the procedures employed.
Ten States — including Alaska, Idaho, Kansas, New Mexico, North Dakota, Ohio, Oregon, Tennessee, Texas, and Wisconsin — as well as the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands — do not have any provisions in their statutes allowing for the removal of child abuse and neglect records in their registries.
In Georgia, two Muscogee County Child Protective Services supervisors were recently charged with falsifying records to maintain federal revenue.
DFCS Intake Supervisor Phyllis Mitchell and former Muscogee DFCS Acting Director Deborah Cobb are out on 45-day paid vacations (called “administrative leave” by the agency) pending the outcome of the investigation. DFCS employees alleged the two women were “ringleaders in an effort to alter, delay and destroy reports to meet internal guidelines and receive grant money,” WRBL News reported
“Dozens of boxes allegedly containing numerous falsified child abuse reports were wheeled out of the Muscogee County DFCS office and are now in the hands of federal agents,” the report explains.
This is nothing new. Whether it is the front line caseworkers falsifying court reports to justify child removals or claiming they’ve made investigative visits when they hadn’t, foster care caseworkers falsifying visitation reports to make it appear they’ve done their jobs, a foster care agency falsifying meeting minutes, falsifying time sheets for services paid for by Medicaid, falsifying the number of children you have to fraudulently obtain food stamps, or federal revenue maximization contractors using gimmicks such as targeted case management or random time studies to inflate administrative costs, turning fiction into fact is the sine qua non of the child protection industry.
Indeed, Indiana Governor Mitch Daniels wrote an editorial saying that when he first took office, he had inherited a department of social services that “had been rocked by a series of criminal indictments, with cheats and caseworkers colluding to steal money meant for poor people.”
Governor Daniels felt the sting sting of a recent court ruling stemming from a case that pit the state against corporate behemoth IBM over a rather expensive human services computer system. In his ruling, Judge Dreyer wrote that “both parties are to blame and Indiana’s taxpayers are left as apparent losers.” Dreyer blamed “misguided government policy and overzealous corporate ambition” for the failure of the system, which he called an “untested theoretical experiment.”
WISH TV reports that “Dreyer previously ordered the state to pay IBM $40 million for subcontractor fees, making the total judgment against the state $52 million. The governor said the money will come out of a fund maintained for such purposes.” I can’t help but wonder exactly what kind of contingency fund the Governor was referring to when he said that.
ADOPTION GAME REMAINS THE SAME
From Michigan – among the more corrupt systems in the country – comes a news report, saying: “Child welfare offices in Ingham and Clinton counties are among several public and private agencies named in a lawsuit filed today alleging social workers lied to adoptive parents of special needs children about their kids’ disabilities and denied them funding available for parents of disabled children.”
Eight families with a total of 17 adopted children announced that they are planning to sue the Department of Human Services, “alleging deceit and violation of federal law going back 20 years.” The news continues on to explain that: “They are seeking more than $13 million in back Social Security assistance and other damages,” according to David Kallman, the Lansing attorney representing the families.
“The parents in this case were assured that the children they were adopting were physically and mentally healthy,” Kallman said in a statement. “DHS workers knew and documented that this was not the case. As a result, these families were, and continue to be, irreparably harmed.” The civil complaint names Governor Rick Snyder, DHS Director Maura Corrigan, and several other DHS officials.
Speaking of Maura Corrigan, she was in Detroit earlier this year demanding that the city hand over its Department of Human Services to the state. Corrigan told the City Council that a joint investigation by state and federal inspectors, along with the FBI, is going on to turn up “potentially illegal misuse of funds.” She also threatened that if the Council did not agree to voluntarily give up control of DHS, “we will move forward with adversarial proceedings to de-certify DHS as a community action agency,” Voice of Detroit reports.
Returning to the wrongful adoption case that was filed this week, this is nothing new. Fraudulent concealment and deliberate misrepresentation are par for the proverbial course, in the adoption end of the child protection industry.
Child welfare agencies and their service providers typically raise public policy concerns in their defense against claims of fraud in adoption cases. In Ross v. Louise Wise Services, a New York case decided in 2006, the court found that the “plaintiffs have demonstrated the existence of facts which, if proven at trial, establish a pattern of conduct, aimed at the public generally, that evinces a wanton indifference to the right of prospective adoptive parents to make an informed decision to proceed with adoption ” The defendant did not deny that it routinely withheld such information from prospective adoptive parents, “conceding that this was its standard practice at the time.”
In Mallette v. Children’s Friend and Services, the court held that when an agency undertakes to furnish the family and medical history of adoptee, it has duty to do so accurately. In Gibbs v. Ernst, the Pennsylvania Supreme Court recognized a cause of action for negligent failure to disclose information. In McKinney v. State, the Washington Supreme Court reached a similar conclusion, recognizing a claim against an adoption agency for negligent failure to disclose mandated information. In Wolford v. Children’s Home Society of West Virginia, the court recognized claims for fraud and negligence in an adoption case.
In M. H. v. Caritas Family Services, Lutheran Social Services of Minnesota, Catholic Charities of the Archdiocese of St. Paul and Minneapolis, and Children’s Home Society of Minnesota joined the defendant as amicus curiae, arguing that the deliberate withholding of information about an adoptive child’s background makes for sound public policy. In Roe v. Catholic Charities, the defendants argued that disclosure of information to the adoptive parents would have violated public policy. In Meracle v. Children’s Service Society, the defense argued that public policy precluded an action against an adoption agency for negligent misrepresentation. Similar arguments were raised in Michael J. v. Los Angeles County, and in Mohr v. Commonwealth, a Massachusetts wrongful adoption case.
When all is said and done, it has been a remarkably uneventful year. When it comes to the child protection industry, nothing ever changes… ever.