James Dwyer’s response to my essay creates a false dichotomy between two “diametrically opposed” camps within child protection policy circles. He describes my “camp” as the one that criticizes child protection agencies for too “readily separating children” from their abusive or neglectful parents, while his “camp” criticizes child welfare agencies for trying to “make parents happy.” His characterization of my article runs off the rails in its very first sentence, however, when he describes these opposing camps as differing in their respective responses to “child abuse and neglect.”
Walter Olson’s useful reply to both of us puts my discussion of safety plans (child removals under agreements that are labeled as voluntary) into a larger context of negotiations undertaken in the shadow of the law. But this “shadow of the law” can be a more lawless place than Olson’s comments acknowledge. Parent who “agree” to leave their homes or let their children stay with relatives during investigations usually believe they have no choice but to accept such an option as the lesser of two evils. They agree to separation from their children only because a CPS investigator threatened them with taking their children to live with strangers. In this context, safety plans are even more coercive and more troubling than any of the agreements in Olson’s posited analogies. By contrast, safety plan negotiations take place in a vastly under-lawyered arena. Families subject to safety demands typically receive no prior notice of the claims of the CPS agency. They usually are legally unsophisticated, lack access to counsel, and are pressured to make separation agreements on the spot that will have life-altering impacts on their children. When a CPS investigator comes to a parent’s home and says, “Sign this agreement or I’m taking the kids,” a team of corporate lawyers or assigned counsel does not come to the home to review the documentation. And no neutral magistrate looks at the signed agreement to see it is fair or reasonable. The shadows of the law in this area are dark indeed.
Olson’s useful context and analogies don’t respond, however, to the debate that Dwyer wants to have with me, or the one I would prefer to have with Dwyer. Initially, it’s important to clarify that my article wasn’t about appropriate responses to abuse and neglect; it was about appropriate responses to hotline calls that allege abuse and neglect. Dwyer assumes that the allegations in millions of hotline calls are true—or true enough, given that Dwyer, like Judge Posner, also would allow hunches to suffice in the place of evidence because “suspicion can ripen.” Dwyer never engages with the primary question I posed: how child protection services should treat families when addressing allegations of abuse or neglect that have yet to be investigated.
Dwyer also pointedly criticizes me for presenting “merely anecdotal” evidence. But a demand for statistical evidence as to the incidence of a problem, before we agree on the terms of debate, presents a nearly impossible task for anyone, let alone for a civil rights lawyer confronting a “shadow of the law” problem as Olson describes it. Threats used to separate families during CPS investigations are not recorded in central databases so as to allow larger epidemiological studies to be undertaken. In fairness to Illinois and Pennsylvania, however, the two states with the most litigation on this issue, these states have been grappling with problems my article raises, though they have resisted statistical recordkeeping that might show that problem of baseless threats that cause family separations may be even worse than I fear.
Despite these limitations on any study of incidence rates, there are clues that the shadow foster care system has spread. A report from Texas found that nearly two-thirds of the children taken from their homes were placed as a result of safety plans. In the Dupuy litigation (part II), a CPS deputy director testified under oath there were 10,000 safety plan removals every year.
In the Dupuy litigation (part I), the federal court determined that there was a “staggering” rate of error in child abuse findings: CPS teams’ decisions that labeled children abused or neglected were overturned more than 75 percent of the time when those labels were appealed. The Second Circuit Court of Appeals made the same finding as to error rates in Valmonte v. Bane, 18 F. 3d 992 (2nd Cir. 1996) as to New York State CPS system. And a study found that workers are two to six times more likely to wrongly substantiate a case than to wrongly label one unfounded.
Instead of debating whether the problem I discuss is real, I expected to start with the central question of “how do we know when abuse or neglect has occurred?” and then move to a discussion of “what are the essential protections we want to provide to families while we try to determine the truth of a Hotline call?”
Medical analogies can often prove useful. In 2002, the American Board of Internal Medicine Foundation developed the broadly celebrated Choosing Wisely campaign, with a mission of “Advancing a national dialogue around avoiding unnecessary medical tests and treatments.” One concern was that antibiotic prescriptions could lead to antibiotic resistance. The campaign did not deny the value of antibiotics but called into question the judgment of those who prescribed antibiotics for a cold “just in case.” By analogy, CPS policy sets forth a range of choices as to how to use coercive interventions into family life on the assumption that children have an “illness” that their families caused or unreasonably failed to treat. Even when there is, arguendo, evidence to support a concern about a child’s health or wellbeing in their family, I am on the side that favors choosing wisely. Dwyer’s response is analogous to drug companies’ pressure for more “just in case” prescriptions before any doctor has decided the child has cold.
Medical analogies also clarify why discussion of “anecdotal” cases can create new understandings. Every epidemic, from Ebola, to AIDS, to mad cow disease, starts with someone noticing a first case and starting to look for treatments. Luminaries from Pericles to Hippocrates to Confucius have recognized that there is always a tradeoff in any well-intended intervention, and balance is important to achieve.
What may be most needed to start a meaningful discussion is a new and more appropriately tailored theory of the state’s proper role in protecting children. As Thomas Kuhn, author of The Structure of Scientific Revolutions (1970), stated, “New theory, however special its range of application, is seldom or never just an increment to what is already known. Its assimilation requires the reconstruction of prior theory and the reevaluation of prior fact, an intrinsically revolutionary process that is seldom completed by a single [person] and never overnight.” New theory defining appropriate state intervention might start with critique of how the current system gets it wrong when we make CPS workers fact finders, parenting police, and enforcement agents. Such a new theory might also help in setting reasonable limits on the powers that have been conferred on CPS workers to operate in the shadow of the law.
This theory cannot evolve from a blanket denial of family experiences. Dwyer’s suggestion that Hernandezes were not much affected for the worse by the 10-day removal of toddler Jaymz from his home, because Crystelle (his mother) got to stay with him (his father Joshua did not), is chilling. Take it from the Hernandezes: their lives were changed in dozens of ways, large and small, by the experience of having their child coercively removed, even for this relatively short time. Today, with four children born after Jaymz, they worry about CPS intervention every time any one of the kids gets a bump or bruise. What parent, having experienced the seizure of their child without probable cause, wouldn’t experience the same fear?
Dwyer’s lack of “alarm” as to caseworkers who have a “gut” feeling about abuse and who act on their instincts is consistent with Judge Posner declaration in Dupuy that “mere suspicion” should be sufficient to threaten a family with a safety plan separation as long as the state was not lying about the evidence it possessed at the time of the demand. But a parent who can imagine himself on the accused person’s side would immediately have a grave concern. If they knew the right legal questions to ask, they might ask how CPS’s gut-based actions square with their fundamental constitutional right to familial association. Should police be given a similar degree of free range to act on gut instincts and hunches (and if so, what’s the check under our rule of law on police entering homes and telling parents to leave because of such hunch?). What would we think of a medical system in which doctors were allowed to conduct heart transplant surgery based on the hunch that the patient might develop heart disease if they fail to act? Risk of future harm, even when that risk is as serious as child abuse, needs to be supported with “definite and articulable evidence” (in the words of the federal court in Brokaw v. Mercer County, 235 F. 3d 1000 (7th Cir. 2000)). And the intervention needs to be reasonably measured in response to the documented risk.
The challenge for advocates is to enunciate more clearly these standards for intervention in cases of alleged child abuse and neglect. Processes are needed to assure these standards are met. A good gut feeling or unsubstantiated hunch is an abdication of policy, not sound policymaking.
Prof. Dwyer makes a few more observations that also merit a response.
Dwyer argues against the likelihood that innocent parents are unduly coerced and threatened by CPS by looking at caseworker motivation, noting caseworkers are overworked and therefore are not looking for more children for their caseload. Caseworkers never go looking for cases, however. They are assigned to cases when referred by the hotline. This observation about individual caseworker motivation also ignores the systemic policy motivations that allow safety plans as a “safe” and low-cost response for the system, if not for the families. This response Olson describes as typical of systems that allow operation in the “shadow of the law” to flourish.
But Dwyer’s observation about caseworker motivation doesn’t answer the reasons safety plan policies have been allowed to run rampant; it only confirms that they are doing so. It’s easier for a caseworker handling an assigned hotline investigation to separate a family under a safety plan than to mount a case with evidence and take it court. While it may be “easier for the family” (and “make parents happy, ” in keeping with Dwyer’s own pet critique of the CPS system’s predilections) in the cases where there is solid evidence of abuse, this observation fails to reckon with the fact that it’s not necessary to have any evidence at all, according to Judge Posner, in order to threaten a safety plan.
Toward the end of his essay, Dwyer leaves the safety plan terrain altogether, reprising his complaint that the CPS system is “soft” on abusive parents, prone to allowing them to keep custody of their children. At times caseworkers do leave children in genuinely abusive homes. I don’t condone these terrible decisions, though they might be rarer than sensation-seeking media suggest. Rather, these cases are just one side of the same coin that lets errors of all types proliferate. Sometimes, the caseworkers who let children languish in homes after experiencing serious abuse are lazy, untrained, or incompetent. Perhaps the evidence at the time of state’s missed opportunity for intervention wasn’t clear. More probably, these caseworkers are too overworked to get to see the children who are in genuine danger due to the overwhelming caseloads that have resulted from “when in doubt, call the Hotline” policies. A system that allows caseworkers to operate on hunches when it separates children from their parents is the same system in which caseworkers leave children home in the face of danger merely because a parent seems “nice” or the home is spotless.
Despite his calls for reliance on research, Dwyer takes a detour to mischaracterize the research on “differential response.” Differential response is a system, like pretrial diversion, that takes hotline calls out of the investigation track and delivers social services instead. Contrary to his claims that this approach leads to more recurrence of maltreatment, the overwhelming body of research has found differential response to be safe and effective.
Despite our many disagreements, near the end of his essay Dwyer lands on one point of agreement—a point that, to my surprise, coincides with the enacted policy of the state of Illinois in a series of post-Hernandez lawsuits. He suggests that, if the state had strong evidence of abuse and instead of court action, it proposed course of treatment agreed to by the family, there would be nothing wrong with that from a due process and lawful state intervention perspective.
Dwyer almost has this point right. The alternative to a voluntary agreement in lieu of court action is fair, lawful, and reasonable if the constitutional standard for removing the child has been met first, before a family separation is demanded. In other words, for a safety plan to be lawful, evidence sufficient to impose such a plan involuntarily must be present.
Such a substantive protection against unwarranted coercive threats would be a good start. But even such protection would not suffice to afford fair procedures to assure adherence to the substantive requirements. There must be an available review of the basis for the state’s demand for such agreements, even if the parent agrees to the agreement’s terms. Agreements can too readily be labeled as voluntary if there is no process available to review them on the merits. Parents also need access to counsel to advise them if the agreements and terms under which they must separate from their children, even if the State were to meet a substantive burden of proof, are fair. This area of social control and family life needs to come out of the shadows of the law and into the light.
In law, as in child welfare, there is no alternative to a system that operates under a reasonable burden of proof, even if that burden is mere “probable cause.” Before children get taken from their parents, shouldn’t we be insisting that the state must have more than a subjective hunch that the parents have mistreated their children? And shouldn’t we be discussing how to protect families from terrible harms that we can’t yet adequately measure since we haven’t been paying attention? Shouldn’t we be discussing how to bring light to the shadow foster care system and the CPS practices that allow this system to operate outside the law? These are the debates we should be having.