PUT A STOP TO CPS

New York City’s retreat from reform

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.

Illinois will pay the price for failing to lower the number of repeat episodes of child abuse and neglect.

The state did not meet a federal goal for reducing the number repeat child abuse and neglect from September 2008 to March 2009, resulting in a fine.

The federal government has set goals for child abuse that no state should fall below in order to improve the child welfare system. Though Illinois has improved in the area of repeated accounts of child abuse, the state has not met the federal standard, said Mark Testa, director of the Children and Family Research Center at the University.

Kendall Marlowe, spokesman for the Department of Children and Family Services, said that during the reporting period, 7.6 percent of abused children in Illinois were re-abused. The federal benchmark standard is 5.4 percent. Because of this, Illinois is liable for a fine from the federal government.

Testa said he believes a fine may not be the best action.

“It’s an argument that yes, Illinois is not doing well, but a fine doesn’t seem to be the right remedy,” Testa said. “Maybe we should use that (money) to see why Illinois does not meet the national standard. That would be the logical thing to do.”

Samantha Webster, a sophomore in DGS who hopes to one day work with DCFS and the court system, said she also thought there might be a better way than fines to improve conditions in Illinois.

“Taking away money sucks but it isn’t going to change the parents,” she said.

Testa said that about 300,000 reports are made to child-abuse hotlines in Illinois each year.

“A report is made to a child-abuse hotline, so doctors and policemen and social workers are mandated by law to report suspected abuse of child,” he said. “Child protected investigators have to, within 24 hours, make contact with the family, and some point after that make contact with the child.”

Testa said that though many reports are made, in many cases of child maltreatment, there won’t be sufficient evidence. About 25,000 children are substantiated each year, and it is considered “repeat maltreatment” if a report is made for the same child twice within six months.

Marlowe said he is not sure where the money will come from, nor how much the state would be fined.

Testa said he believes Illinois needs to be more disciplined about following procedures that are already in place for dealing with child abuse. He said social workers are supposed to ask a systematic set of questions, a “safety assessment,” but this does not take place in every case. He said that Illinois might also need to try to improve resources for child abuse services, especially in southern Illinois, where there is the highest recurrence of maltreatment.

“We need to make sure there are enough resources there to help the family,” Testa said. “It’s much more difficult to provide these services when you’re a spread out community. We need to change some practices and provide others.”

Washington is about to allow or maybe require “home interventions” by government social(ist) workers to “improve immunization coverage” of youngsters.

This mandate is part of a new law called The Affordable Health Choices Act, which would subsidize states to break into homes against parental wishes and “to implement interventions that are recommended by the Community Preventive Services Task Force, such as reminders or recalls for patients or providers, or home visits.”

You can bet that when they enter the home, the government spies will find plenty of reasons to report the family to the state child protective services or some other agency. This is a way to allow the “snitch network” to increase its coverage many-fold, by getting right into the home itself without a search warrant. It will inevitably result in a large new harvest of children for the state child protective services apparatus.

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.

MILWAUKEE – A social worker accused of impregnating a client he investigated for child abuse has retained his state license. The Milwaukee Journal Sentinel reported Friday the 56-year-old social worker resigned from the Bureau of Milwaukee Child Welfare in April and has placement of the child he fathered with the client. The woman’s other children, ages 3 and 5, were later taken from her by the bureau. The code of ethics for state social workers forbids sexual contact with clients. Wisconsin Department of Regulation and Licensing spokesman David Carlson says bureau officials knew about the child by early April, but no report was filed with the state examining board as required within 30 days. Carlson says the man retains his social worker’s license.