PUT A STOP TO CPS

Court Monitor: CFSA’s Foster Care Still Fails.

Hundreds of children die every year in the custody of Child Protective Services. That’s not something the general public is aware of. But that lack of awareness will hopefully end this winter when the full length documentary, Innocence Destroyed, is released.

Innocence Destroyed is not being produced by a half-witted conspiracy theorist but by former firefighter and federal law enforcement officer, Bill Bowen. Bowen, as you can see in the shorter version of the film he has posted on YouTube and which I have embedded below, is intelligent and articulate and just the sort of man needed to produce such a documentary. When you listen to Bowen, you instinctively know that here is a man you can trust–here is a man who tells the truth.

If the short version is any indication of what the full length version will be like, then this film should be entered into competition at Sundance, Slamdance and other film festivals. It is incredibly professional, and the original musical score, particularly Adriana’s Theme by Steve Berkowitz is gorgeous.

But behind the beautiful music is the ugly reality, so ugly the movie is not recommended for anyone under sixteen, of children being tortured and murdered while in the care of the very people who are supposed to protect children, Child Protective Services. Particularly difficult to watch are some of the autopsy photos.

The film opens with a heartrending interview with Tausha Cram, mother of Adriana Cram, the subject of the movie’s theme song. Tausha did not even find out her daughter had been murdered until a month after her death and then found out that she was murdered and buried in Mexico–that’s correct, not New Mexico, but Mexico.

Earlier Tausha had turned to Child Protective Services for help in obtaining insurance and medicine for her daughter’s medical condition. Instead of helping her, CPS took her daughter into custody and charged Tausha with medical neglect. Rather than placing the child with her aunt as promised, CPS placed Adriana with an aunt and uncle of Tausha’s abusive partner, whom she had left because of his abuse. The aunt and uncle lived in Mexico. Adriana went to live with them and was beaten and tortured on a daily basis until she died.

Adriana’s story is just one of the thousands that Bill Bowen has investigated in the past three years. The film tells only a few of these stories. The film reveals that the torture and death of children in the custody of Child Protective Services is too widespread to be ignored.
Bowen also investigates the secrecy of Child Protective Services, the supposed “best interest of the child” standard of CPS and family court, the nepotism in many Child Protective Services agencies, child abuse by CPS investigators, children who have disappeared or who have run away from CPS care, bias in family court and court transcripts that don’t accurately reflect audio recordings

Bowen interviews not only parents who have had their children murdered while in the custody of CPS, he interviews forensic pathologists, former CPS workers, court reporters and more.
Bowen’s short film, Innocence Destroyed, filmed by Chris Walters and Dan Jagels, is a powerful indictment of Child Protective Services. It is powerful not only because of Bowen’s exhaustive search for the truth, but also because of his skill as a writer and filmmaker.

Bowen’s skill as a filmmaker is seen throughout the movie, but it is particularly shown at the beginning and near the end. The opening interview with Tausha Cram draws you into the film. The closing scene (see the photo above) of Tausha lying on Adriana’s grave in Mexico, asking for her daughter’s forgiveness, is one of the most unforgettable images I have ever seen in any movie.

If this film doesn’t move you, then you might question whether or not you really are a member of the human race.

It is an accepted principle that a parent has a constitutionally protected interest in the custody and care of his or her child.  This interest does have exceptions, especially when the child may be in immediate or apparent danger. This is when child protection services gets involved. Crucial to every child protection investigation is to establish the facts and circumstances of the case. When these are presented to the court at a dependency hearing, the evidence may become proof.

The best professional judgment of child protection workers may, in hindsight, be wrong.  For this and other reasons, child protection workers usually have some level of immunity from prosecution.¹  When individual government officials are sued for monetary damages they generally are granted either absolute or qualified immunity. The United States Supreme Court has stated that qualified immunity is the norm, absolute immunity is the exception.²

Should that immunity disappear when, in their official capacities as child protection workers, they make knowingly inaccurate or false statements which result in the wrongful removal of a child?  California law provides for public employee immunity from liability for an injury caused by the employee instituting or prosecuting any judicial or administrative proceeding within the scope of their employment, even if he or she acts maliciously and without probable cause.³  However, a public employee has no such immunity if he or she acted with malice in committing perjury, fabricating evidence failing to disclose exculpatory evidence or obtaining evidence by duress.

Generally, whether an employee is acting within the scope of his or her employment is ordinarily a question of fact to be determined in light of the evidence of the particular case. Some courts hold that immunity for child protective workers exists as long as they act responsibly in the performance of their duties. The immunity applies even where a complaint alleges caseworker misconduct or intentional wrongdoing.⁴  Others hold that the worker must be involved in a function critical to the judicial process itself. In either case, the more outrageous the employee’s alleged tortuous conduct, the less likely it could be described as foreseeable, and the less likely the social service agency could be required to assume responsibility for the act as a general risk of doing business.

Recent Cases

In Doe v. Lebbos (later overruled)⁵ the Ninth Circuit held that a social worker was entitled to absolute immunity for allegedly failing to investigate adequately the allegations of abuse and neglect against a father and in allegedly fabricating evidence in a child dependency petition because those actions had the  requisite connection to the judicial process to be protected by absolute immunity (at 826).” In Van Emrik v. Chemung County Dep’t of Soc. Servs. ⁶ the court found that child protective caseworkers were entitled to qualified immunity in connection with the removal of a child from the custody of her parents during a child abuse investigation. In the Sixth Circuit and the District of Columbia Circuit the type of immunity depends on the particular task the worker is doing. In Gray v. Poole ⁷ the court held that qualified immunity covers social workers acting as investigators, while social workers testifying as witnesses are protected by absolute immunity. In Rippy ex rel. Rippy v. Hattaway ⁸ the court ruled that absolute immunity protects social workers who initiate proceedings on behalf of a child. In Austin v. Borel ⁹ the court ruled that child protection workers were not entitled to absolute immunity when they filed an “allegedly false verified complaint seeking the removal of two children” from the family home (at 1363).

Ethical considerations

There is, of course, a difference between misrepresentation of a piece of physical or verbal evidence and the actual creation of false evidence.  Misrepresentation involves the willful giving of a misleading representation of the facts. Creation of false evidence involves the act of improperly causing a ‘fact’ to exist.   More often, critics and attorneys accuse workers of a willingness to misrepresent, selectively quote, and misconstrue information to support their claims and therefore to present an entirely misleading case. Rather than sticking to agency protocols and training the workers sensationalize their documentation and findings in a misleading fashion.

To what extent are such allegations true? Do workers consciously or unconsciously misrepresent evidence, and selectively engage in systematic distortion? How often do they make deliberate efforts to mislead, deceive, or confuse their own supervisor or the court in order to promote their own personal or ideological objectives? How frequently are workers omitting or concealing material facts? Under the guise of vigilance, are there child protection workers whose adherence to rules and procedures is purposely excessive?

From a social work, legal, or judicial perspective, making a knowing misrepresentation in a child protection case is a serious ethical breach. The NASW Code of Ethics, 4.01(c), notes that: “Social workers should base practice on recognized knowledge, including empirically based knowledge, relevant to social work and social work ethics.”  At 4.04 the Code goes on to state: “Social workers should not participate in, condone, or be associated with dishonesty, fraud, or deception.”    Dishonesty, shading the truth, or a lack of candor cannot be tolerated in child protection services, a field of endeavor built upon trust and respect for the law. Whether or not child protection workers deserve immunity from prosecution when they misrepresent or fabricate evidence is a question each states’ courts are dealing with.  Similarly, each court must decide whether such misconduct warrants setting aside the decision to remove the child from his or her home. In the final analysis, the question might soon find itself before the U.S. Supreme Court.

A worker’s misrepresentation or fabrication of evidence is particularly pernicious because it puts the whole field of child protection in a negative light. Whether or not immunity is granted, there is simply no excuse for this kind of willful and egregious conduct.

The working group brought together by the tragic death of Gabriel Myers has finished its work. Unfortunately, its final report comes as no surprise: Simply put, the 7-year-old foster child who committed suicide died at the hands of a neglectful bureaucracy.

Gabriel’s lifeless body was found hanging in his Margate foster home on April 16. The death shone a troubling spotlight on the boy’s medical history and — once again — resurrected the controversy over prescribing psychotropic medications to children. Nationally, about 5 percent of all children are treated with psychotropic drugs. In Florida’s foster care system, roughly 15 percent of its children receive at least one of these powerful drugs.

The working group’s findings are replete with all-too-familiar instances of red flags and missed opportunities. One finding, however, stands out and is a testimony to the failure of a major reform to the state’s child welfare system: “There was inadequate oversight of the involved agencies by the [Florida] Department of Children & Families.”

Community-based care was designed to take care of that. The initiative, dating back to the days of Gov. Jeb Bush, took the responsibility for operating foster care services away from what was then a dysfunctional state agency and turned those duties over to local, “community-based” organizations, such as Child-Net, the group responsible for Gabriel’s care. DCF, under this reform, would concentrate its bureaucratic resources on oversight.

At least that’s how it was supposed to work.

Instead, DCF has had a tough go of it. State lawmakers earlier this year considered a bill to limit the department and other health and human services agencies’ ability to monitor these contracts, despite a recommendation by OPPAGA, the Legislature’s watchdog agency, against such limits.

Fortunately, cooler heads prevailed, and the legislation failed to get real traction. Lawmakers should instead find ways to improve monitoring to ensure quality services without strangling contractors’ operations. As Gabriel’s case shows, it’s needed.