Before entering onto my disagreements with Prof. Dwyer, here are a few items on which he and I do agree in part or full. I think he makes a good point that if courts or lawmakers restrict agencies’ use of soft or intermediate sanctions such as safety plans, they will often turn to harder methods. Moreover, a push to fit soft or intermediate sanctions into a more legalistic framework, while generating some results I might applaud – such as a better audit trail by which we could check agencies’ use of the sanctions – might also have other less welcome effects, such as cost, delay, and hazards to privacy as more family details get inscribed in permanent public records. Finally, I believe I agree with both Redleaf and Dwyer that caseworkers are placed under conflicting and difficult demands, while being asked to exercise judgment for which training is (and maybe always will be) inadequate. No matter how much we may fear the power of CPS agencies, demonizing caseworkers as a group is not the right answer.
Dwyer thinks it significant enough to make the point twice that “the rate of actual child maltreatment greatly exceeds the rate at which children are reported to CPS as maltreated.” I think this point is not worth making even once.
A quarter century ago, there was a famous study on medical negligence in which experts reviewed a large random sample of treatment records to determine how often substandard care had harmed patients. They found a lot of bad, injurious care – in fact many more instances of it than there were lawsuits. In other words, most times that doctors committed negligent harm, they were not sued. As you can imagine, trial lawyers crowed about that part of the study. But they did not crow about the other part, in which the check was done in the reverse direction: looking at the cases where doctors were sued, the reviewers in the great majority of instances did not find substantiation of negligent harm. (Many of the unsubstantiated claims nonetheless obtained settlements.) The combined findings of error in both directions do not somehow balance out to show that the malpractice-suit system was working well as a whole. Quite the reverse.
Dwyer urges us to draw inferences to parents’ disfavor from missing evidence. “A caseworker’s conclusion that a report is unfounded,” he writes, “does not amount to a determination that the report was invalid or false.” Maybe so, but how much less does it entitle us to proceed as if the parent was probably guilty but contrived to get away with it this time? As Diane Redleaf rightly recognizes, any legal system deserving the name of justice must distinguish sharply between accusation and proof, most especially when the subject matter of accusations is read by society as a matter of deep disgrace and moral stain, criminal liability or no. To me, Dwyer’s inquiry into the details of the Hernandez case shows how easy it is for family members to set off tripwires of suspicion under questioning. Inconsistencies and errors were found in parental accounts on such matters as who was present at a scene and whether there were objects in a crib. It’s not exactly news that witnesses after an incident often give confused and contradictory accounts. If we are going to entrust caseworkers with powers of on-the-spot family separation based on subjective reception of demeanor evidence, a spider sense of something just not seeming right – at least when an “unexplained bruise” figures into the mix – then I hope at least we are duly awed and humbled at the formidable nature of the discretion we are entrusting to caseworkers over human lives.
As I mentioned in my earlier comment, there are agencies willing, as policy, to snatch children from parents over marijuana use in the home, over letting Junior sit in the back seat while Mom picks up the dry cleaning, over playing alone in the park at age 8, and over a host of other infractions within past or present normal range. Ten years from now, maybe the triggers will be cigarette smoking in kids’ presence, moderate drinking during pregnancy, or a snack-food-based diet. Being popped into the care of paid strangers through multiple and shifting placements may involve getting yanked into a different school system, losing touch with your old friends, and crying yourself to sleep each night from missing your real family – but never mind, agencies record a low rate of formal abuse findings in situations like yours. Above all when shifting policy and value judgments get framed in the language of claims to expertise, families fear CPS, and they are right to fear CPS.
I will note for the record Prof. Dwyer’s at best puzzling statement that government “creates legal relationships between children and persons who wish to serve as parents, whether that occurs in an adoption proceeding or via biology-based parentage law.” Pending adoptions are one thing, but I would have called actual biological mothers and fathers, as well as parents after completed adoptions, not “persons who wish to serve as parents,” but simply “parents.” To claim that by not intervening to destroy an established family the state is “continually, albeit implicitly, reaffirming its choice of legal parents” is to imply an astounding subservience of the family to the state. And to state that when it detects “a substantial divergence” between parents’ and children’s interests, the state “should act to protect the child, period,” is as wrong as can be, too. A parent’s unwise choice of a partner in remarrying after divorce, for example, quite clearly will often conflict with the child’s interests. That does not mean the state should have the slightest say in the matter.
In perspective, my differences with Diane Redleaf’s views seem small. And I do wonder, with her, why it is that parents facing the seizure of their children do not already have an established right to be informed promptly of the nature of the charges against them.