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Introduction
Probably
no other public agency leaves victims and advocates more perplexed
than Child Protective Services. On the one hand, people think
of CPS with appreciation as they envision a selfless agency rescuing
innocent children from horrific conditions. Indeed, CPS workers
across the country do this routinely. The gratitude is deserved.
At the
same time, the agency seems to be perpetually marred by a steady
drumbeat of nightmare stories about CPS emanating from the very
families CPS is supposed to serve. This text deals with just one
of these problems; the CPS practice of removing or threatening
to remove children from the nonviolent, non-offending parent in
cases of family violence. This guide explains why this happens
with such frequency, how to help prevent it from happening in
your case, and what to do about it if you're already caught in
its grip. (Since the non-offending, nonviolent parent in these
cases is usually the mother, we often refer to this parent as
'the mother', though there are certainly cases where the non-offending
parent is the father.)
The
Situation as it Usually Unfolds
In brief,
the particular problem we cover usually unfolds like this. A mother
herself seeks help from CPS or becomes involved with CPS through
someone else's report of suspected child abuse. Her child has
been physically or sexually abused by a family member, usually
by a male family member, or there are concerns the child is living
in a home where there is domestic violence. At first, the mother
naturally anticipates that CPS will try to help her and her child,
and try to punish and stop the perpetrator. So these mothers are
stunned when suddenly the CPS/juvenile court system turns its
sights on her, even though everyone agrees she didn't perpetrate
the abuse or violence.
Suddenly
she is the one under investigation, and the perpetrator is seeming
to be all but ignored. And worse, CPS is threatening to take her
child from her, or has already done so without warning or notice,
and is threatening to keep the child, right at the time that mother
and child need each other most. She feels the system turn hostile
toward her. Did she, the non-offending parent, protect the child
from the violent parent? Did she protect the child from molestation?
Did she protect the child from being exposed to domestic violence
in the home? Well, no, obviously she did not, or could not, or,
in the case of molestation, often didn't know about it.
Instead
of being treated more as a co-victim of a violent perpetrator,
with help and guidance provided according to the mother's expressed
needs, she is treated more as a co-perpetrator, with CPS establishing
mandated controls over virtually any which aspect of her life
CPS chooses, all under threat of losing her child. In addition
to court dates at which it is her behavior that's in question,
CPS gives her a mandated, often overwhelming set of programs and
goals she must comply with to the satisfaction of the CPS/juvenile
court system, in order to - maybe - get the child back - and maybe
not. She is also held accountable for maintaining a cooperative
attitude throughout, even though she is, in fact, in a profoundly
adversarial relationship with CPS (which is why she's given an
attorney at court time). At the same time, she begins to realize
that the CPS/juvenile court system isn't pushing to hold the perpetrator
accountable for his violence, nor is CPS even invested with the
power to do so.
Most mothers
say they would rather be threatened with jail than to be threatened
with the loss of her child. Yet as invasive, terrifying, and awesome
as this governmental threat is, virtually all the decisions as
to her fitness, compliance, and fate are being decided at the
lowest judicial standard of evidence, 51% of the evidence, the
'preponderance of the evidence' standard. This is a far cry from
the 'beyond a reasonable doubt' standard the government must reach
before sentencing someone to jail for even the briefest time.
The level
of proof against her that CPS is required to put forth is so minimal
that it provides the mother little protection against any abusive,
prejudiced, or discriminatory exercise of power by CPS. The low
evidence burden on CPS also makes it nearly impossible for the
mother to defend herself, especially against such vague accusations
as 'failure to protect', or that 'she knew or should have known',
things which don't even constitute a crime in the criminal system.
And to top off the injustices, an all too common requirement on
her must-do list is that she and/or the child must partake in
family conferencing or a family reunification plan in which one
or both must meet, mediate, or co-counsel with the perpetrator
- the very same perpetrator from whom the mother has been accused
of 'failure to protect' the child.
The
Dawn of Recognition
Unfortunately,
such stories are not the result of occasional human errors that
are bound to occur in any public agency. They are, instead, inevitable
and frequent outcomes stemming from the flawed founding premises
and the weak legal underpinnings of the CPS/juvenile court system.
The structure of the system drives toward these injustices no
matter how well intentioned individual CPS workers may be. Nor
is this to say that children should never be removed from the
non-offending parent. There are circumstances in which they should.
The problem is that the system is so arbitrary, sexist, secret,
and outdated, that it tends toward abusive or mistaken results.
In the
last decade, there has been growing recognition and discussion
of the CPS problem as it pertains to the non-offending parent.
In 1999, the National Council of Juvenile and Family Court Judges
put together the Greenbook Initiative, a set of 67 recommendations
aimed at remedying precisely this set of problems. But though
the Greenbook gives long overdue recognition to the issue, the
recommendations don't call for installing any firm checks on the
system, as will be discussed in more detail in a later section.
And in
2004, in New York state, there was a landmark settlement in a
class action lawsuit against that state's child welfare agencies.
The lawsuit, Nicholson v. Scoppetta, had been brought by mothers
who had their children removed for no other reason than that the
mothers, victims of domestic violence, had failed to protect their
children from 'exposure' to the domestic violence. The 2004 lawsuit
agreement and an earlier injunction prohibited child welfare agencies
from using this reason alone to remove children from non-offending
parents.
Though
the lawsuit put CPS agencies around the country on notice of their
wrongdoing and harm done in these cases, to date it has brought
only modest change in practice. The vague laws and weak evidence
standards governing CPS means that CPS workers need only adjust
the language used in their justification for removing a child,
offer the usual scant proof, and many juvenile courts continue
removing children in these situations as before.
Perhaps
the brightest spot on the horizon is the year 2005 resolution
passed by the National Council of Juvenile and Family Court Judges
in support of presumptively open hearings with discretion of courts
to close. Since their founding, most CPS/juvenile court proceedings
have been operating in secret, completely off the public record.
This secrecy has mushroomed the system's tendency toward abuse.
The judges' 2005 resolution in support of open hearings is not
yet law, but it's a promising step. It's highly unlikely any of
the system's abuses will be corrected until this essential public
airing and public scrutiny of the system's proceedings is firmly
set into law and practice.
The
Oppressive Swath of Danger and Damage
The harm
of the widespread CPS practice of removing or threatening to remove
children from non-offending parents extends far beyond the dangers
and injustices to individual mothers and children. The harm extends
to nearly every poor, immigrant, or minority race mother who is
trying to deal with family violence. Most have heard first hand
stories of CPS removing children from other mothers in their neighborhoods.
As a result, they become reluctant to seek help for their own
situations for fear that the same thing might happen to them.
Though
we include a fair amount of information about the structure and
history of CPS, the purpose of this guide isn't to do policy analysis
nor to make recommendations for change. The purpose of this guide
is to give family violence victims, advocates, and mandated reporters
information and tips that can help you, as best as possible, to
understand and avoid the pitfalls and abuses of the CPS/Juvenile
Court system as they pertain to the non-offending parent.
***
Part 1 - Key Facts
About Child Protective Services and Child Welfare Agencies
Though
most of the information in this section is meant to explain why
so many non-offending parents get victimized by the CPS system,
we start by correcting a very common misconception about mandated
reporting.
 1.
In California, and Many Other States, Mandated Reporters Do NOT
Have to Report to Child Protective Services.
We start here because so many counselors, teachers, doctors, and
other mandated reporters, many of whom are already sympathetic
to the problems mothers experience with CPS, say there's nothing
they can do about it. They believe their state laws require that
whenever they suspect child abuse, they must make a report to
CPS. But that's not, in fact, what the law in California and many
other states says at all.
As you
can see clearly in the California law printed here, the law gives
mandated reporters a choice of institutions to which they can
report. You can make your report to police, sheriffs, probation
departments, or child welfare agencies. In fact, in California
and many other states we're familiar with, the mandated reporting
laws put child welfare agencies last on the list of options.
Here is
the section of the California State Mandated Reporter Law that
pertains to whom one should report.
California Penal
Code Section 11165.9
11165.9. Reports of suspected child abuse or
neglect shall be made by mandated reporters, or in the case
of reports pursuant to Section 11166.05, may be made, to any
police department or sheriff's department, not including a school
district police or security department, county probation department,
if designated by the county to receive mandated reports, or
the county welfare department. Any of those agencies shall accept
a report of suspected child abuse or neglect whether offered
by a mandated reporter or another person, or referred by another
agency, even if the agency to whom the report is being made
lacks subject matter or geographical jurisdiction to investigate
the reported case, unless the agency can immediately electronically
transfer the call to an agency with proper jurisdiction. When
an agency takes a report about a case of suspected child abuse
or neglect in which that agency lacks jurisdiction, the agency
shall immediately refer the case by telephone, fax, or electronic
transmission to an agency with proper jurisdiction. Agencies
that are required to receive reports of suspected child abuse
or neglect may not refuse to accept a report of suspected child
abuse or neglect from a mandated reporter or another person
unless otherwise authorized pursuant to this section, and shall
maintain a record of all reports received.
One obvious
question after reading this law is why are so many mandated reporters
taught incorrectly that they must report to CPS when the law in
many states so clearly gives mandated reporters a choice. The
reasons will become clearer in the section on the history of child
protection. But in brief, CPS agencies were established back in
the late 1960's and 1970's at a time when a strong national consensus
had developed that children shouldn't suffer abuse in the home.
However, it was also a time when family violence was not yet viewed
as criminal, and perpetrators were not held accountable. CPS powers
and functions were shaped to reflect that ambivalent constellation
of beliefs. And today, despite advances, there is still strong
societal resistance to holding family violence perpetrators accountable.
And there's a corresponding tendency to channel intrafamilial
child abuse cases into CPS where policies and powers are set to
detain the child and not the perpetrator.
But the
main point we want to underscore here is that mandated reporters
in many states can choose not to report to CPS. You have other
options, and often those other options will be much more beneficial
for both the mother and the child.
NOTE
1: Finding the Text of Your State's Mandated Reporting Law -
Most states have their full legal codes on the Internet in searchable
form. Go to your state's legal codes page. In most states, the
mandated reporting laws will be in your state's Penal Code. Search
'child abuse mandated reporter' or similar term.
NOTE
2: Cross Reporting - In California and in many other states
the child abuse mandated reporting laws require 'cross-reporting'
between agencies. This means that the agency which receives the
initial report must immediately send copies of the report to other
designated agencies. So if CPS receives the initial report, CPS
must immediately send a copy of the report to the relevant police
agency and to the District Attorney's office, and visa versa.
This cross-reporting requirement has little effect on the problems
we're trying to outline here because in general practice the agency
that first receives the report is the agency which takes primary
responsibility for handling the case.
2.
CPS Does Not Have the Power to Open a Criminal Case Against the
Perpetrator, Nor Do They Have the Power of Arrest. CPS agencies
are not law enforcement agencies. They are social service agencies.
This explains why CPS does not take action against the perpetrators
of the violence.
Child
Protective Services do not have the power to open a criminal case
against perpetrators of child abuse. They do not have the power
to do criminal investigations of child abuse, nor the power of
arrest. Nor does the juvenile court system that corresponds to
CPS cases seek to prosecute the perpetrators, nor are these courts
invested with the power to do so.
CPS workers
are not law enforcement officers, they are social service workers.
Child Protective Services are a branch of your state social services
department. They are not part of your justice department nor of
your local law enforcement agencies.
Understanding
this is key to understanding why the CPS/juvenile court system
does not hold perpetrators accountable for violent acts against
a child, nor does it seek to gather evidence for prosecution,
nor to punish the perpetrators for what they've done. The CPS/juvenile
court system was never intended nor empowered to do so.
So, if
your daughter was raped by her stepfather, for example, CPS will
not investigate his crime, will not seek to punish him, nor in
any way hold him accountable. Likewise, if your husband is violent
with you and CPS is looking into the status of the children, CPS
has no power to hold the perpetrator accountable for his violence.
NOTE
1: The CPS 'Investigation' - One of the things that creates
confusion on this issue is that CPS and others use the word investigation
to describe the CPS process of looking into the child abuse matter.
But these are not criminal investigations where evidence is gathered
to determine 'beyond a reasonable doubt' who committed a particular
crime, and how, so that the perpetrator can be brought to justice.
A CPS
'investigation' can be better understood as a social narrative
report on the status of a child and the child's family. To be
sure, the CPS report centers around the issue of the suspected
abuse. But once CPS determines it's 'more likely than not' that
the abuse occurred, that satisfies CPS inquiry into the incidents
themselves.
Different
from a criminal investigation, the main purpose of the CPS report
is to determine whether or not the child needs to be protected
from future abuse, and if so, what needs to be done to protect
the child from future abuse. As such, CPS reports focus in on
detailing the family histories of the parents, the psychosocial
and economic conditions of the home, the relationships between
the family members, the school and educational status of family
members, as well as covering the alleged abuse. All of these things,
except for the abuse, would be completely irrelevant in a criminal
investigation.
NOTE
2: Juvenile Court Powers in CPS cases - In many states, juvenile
courts do now have the power to order perpetrators into counseling,
and in some states have the power to order the abuser out of the
home. These decisions, however, are rendered with the purpose
of protecting a child from future abuse, and not with the purpose
of holding the perpetrator accountable.
3.
The CPS/juvenile court System Has Only One Significant Power,
the Power to Remove Children from their Parents.
Although
CPS does not have law enforcement powers, unlike most other social
service agencies, CPS does have one awesome power, the power to
take custody and remove children from the home. The stated purpose
of this power is to protect the child from future abuse. The stated
purpose is not to punish anyone, though obviously for parents
and children who love each other this forced removal can be the
worst punishment of all.
The lack
of law enforcement powers explains why CPS does not take action
against perpetrators. The power to remove children explains why
CPS so quickly turns its sights on the non-offending parent.
Once CPS
decides that abuse of a child or violence in the home has probably
taken place, the CPS worker must then decide how best to protect
the child from future abuse. Since it's usually obvious that the
child should not be immediately returned to the perpetrator of
the violence, CPS quickly turns to the question of whether or
not the child should stay with the non-offending parent. That's
how and why CPS becomes so fixated on 'investigating' the nonviolent
parent. Did the mother protect the child from the abuse? Did she
know, or should she have known, that the child was being molested?
Did the mother protect the child from living in a home with domestic
violence? Will she protect the child in the future?
No matter
how you look at it, the circumstances of these situations can
almost always be construed to indicate that the mother didn't
protect, and that she knew or should have known. After all, goes
the thinking, she's the mother and she's living in the same home.
NOTE
1: CPS does have other options than to remove the child. In
fact, federal and state law governing CPS requires that CPS pursue
family preservation as well as child safety, and that CPS first
make "reasonable efforts" to establish a service plan
for the family to follow so the child can stay in the home, or
return to the home.
But even
if CPS is making a good faith effort to abide by these policies,
it doesn't alter the adversarial (oppositional) nature of the
relationship with CPS in which the mother finds herself. Even
if CPS has not taken the child and lays out a program for the
mother to follow so the child can stay in the home, the mother
knows full well what this means. 'You do this program or we take
your child'. The mother knows this doesn't feel like help. It
feels terrifying, hostile, and punitive. Especially so as her
must-do-list is often hugely overwhelming since so many of the
mothers are poor and acutely stressed. And even more hostile as
the mother begins to see how prone the CPS exercise of power is
to be arbitrary, prejudiced, and with shifting input and goals,
the frequency of which is partly explained by the following.
4.
At best, CPS/juvenile court Decisions are Made on the Lowest Judicial
Standard of Evidence, the 'Preponderance of the Evidence' Standard,
i.e. 51% of the Evidence. The void of evidence and rigor in the
CPS/juvenile court system leaves the decision making process wide
open to the virtually unchecked influence of mistakes, bias, discrimination,
prejudice, vengeance, hearsay, junk science, nonsense, and arbitrariness
of all kinds. (The one exception to this is that a final termination
of parental rights usually requires a 'clear and convincing' standard
of evidence, which is still a much lower standard than the 'beyond
a reasonable doubt' standard of the criminal system.)
When CPS
seeks to establish the abuse, remove a child for up to 18 months,
establish mandated service plans, determine visitation, etc.,
CPS must go into juvenile court to get these decisions authorized
by the court. At first this may seem to provide the kind of oversight
on CPS decisions that would make the process just, equitable,
and safe from abuses. But read on.
First,
the body of law governing the CPS/juvenile court system is so
vague and open ended that virtually any and all decisions made
by these bodies falls within the scope of the laws.
Second,
at best, CPS and juvenile courts makes these decisions based on
the 'preponderance of evidence' standard. This is the lowest judicial
standard of evidence. The preponderance of the evidence standard
is 51% of the evidence. It's sometimes called the 'more likely
than not' standard. What this means is that all CPS needs to support
a decision is evidence on their side, the CPS side, which is just
a sliver more than the evidence on your side. This is a far cry
from the 'beyond a reasonable doubt' standard criminal officials
must establish before they can convict someone of a crime, even
a misdemeanor.
Example of Preponderance
of the Evidence: The mother tells CPS she didn't know that
the stepfather was sexually molesting the daughter because the
stepfather always did it while she (the mother) was watching
television in another room. The CPS worker tells the court that
the fact the mother was in the same house watching television
while the stepfather molested the child is a good indication
that the mother should have known what the stepfather was doing.
Given the sloppiness of the 'preponderance of the evidence'
standard, all the judge has to do is lean ever so slightly to
the social worker's argument, and the judge can issue a finding
that the mother 'knew or should have known', and then based
on this finding grant the CPS petition to detain the child.
Which is exactly what happened in this case.
Many lawyers
themselves are so scornful of the flimsy evidence standard of
the CPS system they call it "a crap shoot", or the "anything
goes" standard. The problem for the mother goes beyond the
fact that CPS doesn't need much evidence against her. It also
means that whatever opinion a CPS worker may have of you, the
worker can usually support that opinion in court simply by fishing
through the extensive family details the worker has gathered and
then selecting out the one or two tidbits that favor the opinion.
Add to
this the huge initial mistake many women make of thinking of CPS
as their advocate or friend or counselor. They pour their hearts
out to the worker, giving the worker a whole ocean of intimate
information in which to fish for evidence against them.
Yes, it's
true that with all this latitude, the CPS system can actually
do things right and put its full resources into helping the mother
and child to get safely on their feet together. And indeed, there
are plenty of cases where this is exactly what happens. But there
are a number of things that makes the system tend toward abusive
responses. One of these is the cardinal truth of any power. Unchecked
power always tends towards abuses of that power. And the power
of CPS is hugely unchecked. And worse yet, as is discussed later,
it is exercised in secret.
A second
thing that tends the system toward abusive and prejudicial responses
is the class of the mothers themselves, and the heaping social
prejudices that already prevail against them. The mothers who
come to the attention of CPS are most often poor, or immigrant,
or minority race, and themselves are the direct or secondary victims
of family violence. The harsh realities of their lives are chaotic,
frantic, and generally incomprehensible to people who don't live
them. There is so much prejudice, stereotypes, ignorance, and
blame against these women floating in society that the middle
class social service system is primed from the start to blame
these mothers, or at the very least, to believe it's the mothers
that need to be fixed.
NOTE
1: Lessons from the Native American Community. Prior to the
passage of the federal Indian Child Welfare Act of 1978,
child welfare/juvenile court systems were removing up to 25% of
the children from many Indian tribes, then terminating Indian
parental rights, and adopting the children out to non-Indian families.
Non-Indian social workers and judges were using rampant prejudicial
and racist notions to justify these removals. In particular, CPS/juvenile
courts were judging many traditional Indian child rearing practices
to be abusive, in and of themselves. Native American peoples'
were losing so many of their children to this process, many tribes
labeled these child welfare policies as genocidal.
The Indian
tribes crafted the Indian Child Welfare Act with the aim of stopping
this systematic removal of their children. In so doing, the Indians
keenly understood how the use of the 'preponderance of evidence'
standard gave free reign to the prejudices, racism, and arbitrary
factors that were being used to justify taking their children.
They understood that the more oppressed a person is the more they
need a high standard of evidence to protect them from governmental
abuse. So, among other things, the Indian Child Welfare Act requires
that CPS/juvenile courts must use the stricter 'clear and convincing'
standard of evidence before the state can put an Indian child
in temporary foster care, and must use the even stricter 'beyond
a reasonable doubt' standard of evidence before the court can
order termination of Indian parental rights. The act also requires
that at any termination hearing, there must be expert witness
testimony on Indian culture and child rearing.
We feel
strongly that these same protections should be extended to all
who come before CPS, since most all of these families are members
of historically oppressed groups.
5.
The Flimsy 'Preponderance of the Evidence' Standard is Bad Enough,
But Things are Actually Much Worse. Increasingly, the CPS/juvenile
court systems are handing off their fact finding and decision
making responsibilities to mediators, evaluators, and even to
CASA volunteers, all of whom operate on NO standard of evidence
at all.
There's
no doubt that the juvenile courts have become increasingly stressed
over the last few decades as victims of family violence have emerged
to seek help for their plights. But instead of adding resources
to properly meet the need, the CPS/juvenile court system, like
the family court system, has handed off more and more of its fact
finding and decision making responsibilities to a whole phalanx
of psychologists, mediators, evaluators, and even to volunteers.
These
are court janitors, really, brought aboard to mop up the judicial
mess made by women and children who have found a way to make their
needs and outrage heard. When a case becomes complicated or contentious,
or is just more work than the judge wants to handle, the judge
simply turns the case over to one of these evaluators to look
into the case and come back to the judge with a set of recommendations.
In nearly all cases, juvenile court judges blindly rubber stamp
these recommendations with no further ado.
What is
absolutely critical to understand is that once handed off to these
evaluators, you have been ushered out the court's back door, outside
the rule of court law, and completely unprotected by rules of
evidence. These evaluators operate under NO standard of evidence.
NO rules of admissibility. NO legal protections at all. Hearsay,
psychobabble, prejudice, lies, gossip, it all comes in. And it's
often all against you because the perpetrators are usually expert
manipulators and liars, and, in addition, they have likely already
poisoned the social relationships around you. This is why it's
the non-offending parent who most needs strict rules of evidence
for protection, and is most hurt by their absence.
NOTE
1 - CASA Volunteers - But it gets even worse. Many juvenile
courts across the country are now handing off official fact finding
and decision making responsibilities in these cases to CASA volunteers,
people who are only required to have 30 hours training. And the
juvenile courts are usually assigning these volunteers to the
most egregious and complex cases of child abuse.
The public
has been thoroughly wooed to the feel good idea of having CASA
volunteers to 'protect the interests of the child' in these cases.
Indeed, there is great benefit for the child to be assigned a
special person to talk to and even to advocate for the child through
this process.
The whole
CASA program would be just fine if it ended there. But juvenile
courts routinely swear these volunteers in as official court fact
finders (investigators), as representatives of the child's stated
interests, as representatives of the child's best interests, and,
as formulators of recommendations to the court as to the best
disposition of the child. A recent national study, the Packard
Foundation funded Caliber Study, finds that juvenile court judges
adopt ALL the recommendations of the CASA volunteers in over 60%
of cases.
This is
a complete mockery and travesty of any and all notions of justice,
and is particularly contemptful of mother's and children's rights.
For so many reasons. But just for one, imagine if your surgeon
sought out and took the recommendation of whether to amputate
your leg from a volunteer with 30 hours training. You would be
outraged! And you would never deal with this surgeon again. Yet
this is exactly what juvenile court judges across the country
are doing on the question of whether or not to remove the child
from the mother, in the most complex and egregious of cases. They
are turning over their fact finding, evaluation, and decision
making responsibilities by swearing in persons with 30 hours training
to act in any or all these official capacities.
The courts
say they are doing this because they want to be sure to hear the
children's voices. But you only have to think for a moment to
realize what the courts are really doing is avoiding the costs
of a professional investigator, expert, or professional representation
that is minimally needed to guarantee even minimal judicial standards
for children.
And these
courts have the nerve to accuse the mothers of failure to protect!
6.
Both the Federal and State Welfare Law Governing the CPS/Juvenile
court System are Full of Vague, Non-mandatory Language, a Fact
Which Further Promotes the 'Anything Goes' Atmosphere of CPS Proceedings.
In addition, these laws almost always refer to the parents as
an undifferentiated single unit, "the parents', a fact which
puts a legal lock on viewing the non-offending parent with as
much culpability as the abusive parent. Only recently has the
legal language begun to recognize the existence of the 'non-offending
parent' as separate or unique from the offending parent.
As you
read through the federal and state law governing child protective
services you can see features of the law that further help explain
the frequent arbitrary and biased actions of these agencies. Here
are just two.
Federal
and state welfare law governing child protective services are
vague, nonspecific, and use mostly non-mandatory language. For
example, federal law 'encourages' child welfare agencies to provide
their materials in languages other than English. It does not mandate
that they do so. As such, many, if not most, non-English speaking
mothers receive their CPS reports, their service plans, and notices
in English only. Another example is that welfare law states a
'preference' for family reunification, and says social workers
shall make 'reasonable efforts' to provide services that allow
the family to stay together.
This kind
of language in the law leaves so much wiggle room that virtually
anything the system decides will fall within the law, a fact which
further magnifies the difficulties for a non-offending parent
trying to defend herself or appeal these decisions.
A second
feature that runs throughout child welfare law is that it constantly
refers to 'the parents' as an undifferentiated entity. There's
very infrequent distinction in child welfare law between the offending
and non-offending parent. In fact, if you were an alien from outer
space reading this law, it would be a while before it even dawned
on you that "the parents" are two separate human beings.
This dubious framework stems from the archaic patriarchal view
of marriage of not very long ago that the two become one and the
one is the man.
Naturally,
this constant reference to "the parents" helps cement
the system's huge blind spot to a woman's predicament when her
partner is abusive. Clearly, the law can't see her more as a victim
of the abuser, if the legal language lumps her in with the abuser.
If the father is a domestic violence perpetrator, the mother,
too, is automatically "engaging in domestic violence",
which is precisely the language the system has used to justify
taking the children from mothers who are victims of domestic violence.
Legal recognition and distinctions between the offending and non-offending
parent are coming at a snail's pace.
7.
The CPS/Juvenile Court System Operates in Secrecy Off the Public
Record. This secrecy fans the flames of the system's other tendencies
to abuse.
The reason
that CPS/Juvenile Court findings, proceedings, mandates, and actions
take place off the public record is ostensibly to protect the
privacy of the child and family in what is viewed as a private
family matter. But one certainly must ask, who really has been
more protected by this secrecy, the CPS system or the families
it serves?
Nothing
fans the flames of governmental abuse like governmental secrecy.
Secret files, secret evidence, secret accusations, secret proceedings
are a sure fire formula for allowing abuses to thrive and expand
throughout the system. Since its inception, CPS/juvenile court
activities have been off the public record with the exception
of only a few states. The involved parents are informed. But,
to date, neither the public nor any public watchdog has been allowed
scrutiny or oversight of the handling of these cases.
Fortunately,
it looks like there is the possibility this may change. In 2005,
The National Council of Juvenile and Family Court Judges voted
approval of presumptively open hearings with discretion of courts
to close. This isn't yet law, but it's a big step in that direction.
As part of the resolution the judges wrote the following,
"Open
court proceedings will increase public awareness of the critical
problems faced by juvenile and family courts and by child welfare
agencies in matters involving child protection, may enhance accountability
in the conduct of these proceedings by lifting the veil of secrecy
which surrounds them, and may ultimately increase public confidence
in the work of the judges of the nation's juvenile and family
courts."
We would
probably word this a little differently, 'Open court proceedings
will increase public awareness of the critical problems faced
by children and non-offending parents in matters involving child
protection,.....'
8.
Most all CPS/juvenile court Systems deal ONLY with Intra familial
Child Abuse. This schism between the way society deals with child
abuse perpetrated by a family member versus child abuse perpetrated
by an 'outsider' points out a staggering hypocrisy in the rhetoric
about treating child abuse seriously. Behind the rhetoric is a
child welfare and police system that in reality works hand in
hand to let most child abusers walk free.
Many people
are very surprised when they call CPS to report a child abuse
case perpetrated by a neighbor, a priest, a stranger, or by any
one outside the family. CPS tells the caller they don't handle
these cases. They only respond to cases in which the perpetrator
is a family member. So in most cases in which the perpetrator
is not a family member, CPS tells the caller they'll need to report
to police.
Another
thing that may surprise you is that if you call police to report
a case of child abuse perpetrated by a family member, police will
often tell you should report the case to CPS. Granted police could
take the report if they wanted to, and they should take the report.
But police themselves are all too often on the same philosophical
page as CPS. They too often believe that when fathers 'grow their
own victim', the fathers shouldn't be held accountable like other
offenders.
And another
thing. Even if police do take a report of sexual abuse perpetrated
by a family member, chances are very good that the perpetrator,
even if convicted, will get off lightly compared to an outside-the-family
perpetrator. California law, like the law in many states, maintains
gaping legal loopholes where, prosecutors can, and frequently
do, charge intra familial child sex abuse under different codes
which allow the family offenders much lighter sentences. In addition,
the law allows convicted intra familial child sex offenders to
be given probation, different from outsider child sex offenders
who must go to prison. And the law allows convicted intra familial
child sex offenders to stay off the state's public registered
sex offenders lists, also unlike 'outside'. (For a good discussion
of the legal loopholes for fathers and other family members who
sexually molest their children see Child Sexual Abuse and the
State by Ruby Andrew at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=904100)
There
isn't a civic leader out there that doesn't publicly rage to the
heavens about what monsters child molesters are, and how these
'animals' should be strung up at the crack of dawn. But, remember,
the overwhelming majority of all child sex abuse is perpetrated
by family members. What this means is that, in reality, we have
a system that publicly beats its chest over the small percentage
of child molesters who attack someone else's child, while by legal
slight of hand that same system lets the vast majority of child
molesters go free. Not by accident, but by legal and institutional
design. What's perhaps most telling is that, at least in California,
these legal loopholes for intra familial perpetrators have been
widened over recent years, rather than tightened.
Or to
put it another way, the more women and children have made demands
on the system to stop family violence, the more the system has
created ways to look good while paving the perpetrator's escape.
The patriarchy with all its bluff and bluster to the contrary,
still supports the notion that a man's home is his castle, and
that his children are his to do with as he pleases. Unfortunately,
CPS, with its hold-no-perpetrators-accountable system, is a vital
part of the machinery for perpetuating these archaic and oppressive
beliefs.
To
Part 2
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