Race, Tribe and Child Welfare: How Identity Policy Trumps Children’s Needs

rainbow children — Image: nataliekuna.com

Our country has a terrible history with regard to our African-American and Native American citizens. Centuries of racism have led to consequences that last until today, and racism continues to be a fact of life affecting minorities around the nation. But attempts to address historical wrongs can end up further victimizing the very people we are trying to help. A case in point is the Indian Child Welfare Act. While the recognition of these unintended consequences is spreading, some activists are trying to replicate the same harmful “protections” for African American children.

“The removal of Indian children from their natural homes and tribal setting has been and continues to be a national crisis,” according to a report issued in 1976. And indeed, it was estimated that 25% to 35% of Native American children had been removed from their homes and placed in foster homes, adoptive homes, or institutions. About 90% were being raised by non-Indians.

To put an end to “the wholesale separation of Indian children from their families” Congress passed the Indian Child Welfare Act (ICWA) in 1978. ICWA recognized tribal sovereignty over custodial decisions about Native American children, required that child welfare agencies make “active efforts” (defined as greater than the “reasonable efforts” required for other children) to keep Native American children with their families, and established a hierarchy of preferred placements, with family or tribe members as the preferred placements.

Unfortunately, ICWA in practice has had unintended consequences, depriving Native American children of the rights given to other children and putting the wishes of the tribe above the interests of the child, as I described in a recent post. Because of ICWA, 26-month Lauryn Whiteshield and her twin sister were removed from a non-Indian foster family with whom they had spent more than a year and placed with her grandfather and his wife, despite her long history of child neglect and the fact that there were five other children in the household. But Lauryn never reached her third birthday. Her step-grandmother threw her down an embankment and killed her.

Ironically, a law designed to prevent family separations has turned into a vehicle that separates children from the only family they have known. Two-year-old Andy had lived with his foster parents for almost his entire life. But when they filed to adopt him, tribal officials intervened because of his Navajo and Cherokee ancestry. They wanted to send him to New Mexico to live with strangers and a Texas judge agreed, even though Andy’s birth parents approved of the adoption.

Andy’s foster parents appealed successfully, and eventually the tribe changed its mind. But Texas, Louisiana and Indiana filed a lawsuit along with the foster parents of Andy and two other children, to ensure that no more children would be threatened with removal from their families because of their race. On October 4, 2018, a federal judge in Texas agreed, ruling that ICWA’s requirement of differential treatment based on race violated Native American children’s right to equal protection under the law. (See analyses by the Chronicle of Social Change and the Goldwater Institute.) The decision has been appealed and the appeals court has issued a stay of the Texas judge’s ruling.

Like Native American children, African-American children have been overrepresented in foster care, adoption, and involvement in child welfare systems. According to federal data, black children were 13.8 percent of the total child population in the United States in 2014. Yet, they constituted 22.6 percent of those identified as victims of maltreatment, and 24.3 percent of the children in foster care.

In order to address the racial disparity in child welfare, agencies around the country have adopted strategies like family group decision making, workforce retraining for “cultural competence,” and attempts to recruit a more diverse workforce. It is not clear that any of these approaches have been successful, in part because disproportional representation in child welfare may be due more to the historical effects of past racism than to a racist child welfare system, as I described in an earlier post.

There is no direct evidence that any of these policies have been harmful, although analysts have certainly expressed concern that artificially trying to equalize the proportion of black and white children removed from their homes could result in less protection for black children. However, things could get a lot worse. Black children could suffer similar consequences as Native American children are suffering if states decide to implement ICWA-like “protections” for them.

And indeed, two Minnesota legislators have proposed the Minnesota African American Preservation Act (MAAPA). Based on ICWA, MAAPA would set a higher bar for removing African American children from their homes than white children. Instead of requiring “reasonable efforts” to prevent removal and to reunify family as current law requires, MAAPA would require “active efforts,” the same term used in ICWA. MAAPA specifically defines these efforts and states that they must be greater than the reasonable efforts required for other children.

MAAPA would create a new bureaucracy paid for by taxpayers to oversee the new requirements. An “African American Child Well-being Department” within the Department of Human Services would receive notification of all cases involving African-American children and “directly oversee, review, and consult on case plans and services” offered to these children. The law would also create an African American Child Welfare Oversight Council “to help formulate policies and procedures relating to African
American child welfare services, to ensure that African American families are provided with all possible services and opportunities to care for their children in their homes.” MAAPA would also authorize a set of grants to fund services specifically for African-American families.

So what would the consequences be for African-American children? Like ICWA for Indian children, MAAPA would establish a substandard set of protections for African-American children. The higher bar for child removal and the lower bar for family reunification could well result in more children being left in, or returned to, homes where they are in danger.

The creation of new bureaucracies based on race would create a fragmented child welfare system based upon the belief that black children and families are fundamentally different from others. Moreover, it might divert funding away from desperately needed uses like adequate staffing and pay for child welfare social workers.

There has been a lot of talk about identity politics and its effect on recent elections and party preferences. ICWA and MAAPA are examples of what might be called “identity policy,” in which people are treated differently based on their genetic ancestry. This is not the right direction for our country.

ICWA is under attack because it sets up a separate–and inferior–set of protections for Indian children. MAAPA would do the same thing for African American children. By all means, let us do what we can to eliminate discrimination by child protective services. But denying these children the right to equal protection under law is exactly the wrong way to help them.

at causes children to be separated from they only family they recognize. Two sisters, aged 14 and 15, are fighting to stay in the home where they have lived since 2010, while the tribe (in which they were only enrolled in 2012 by their mother) is fighting for their removal. https://www.record-eagle.com/news/local_news/foster-children-face-uncertain-future/article_5813c8b6-838c-5eb6-b07b-e87ac7819b5c.html

https://www.gofundme.com/foster-kids-civil-rights-lawsuit?viewupdates=1&rcid=r01-153876288175-a63810f367b240b2&utm_source=internal&utm_medium=email&utm_content=cta_button&utm_campaign=upd_n

Since I wrote that post, a judge has agreed that…

Yet, ICWA has become Some ICWA supporters argue that it is not being implemented fully, which is why Indian children continue to be removed from their homes at a higher rate than white children. A similar movement has taken place among the child welfare establishment, The movement to erase the “disproportionality” in the representation of black and white children in child welfare systems has many similarities to what motivated passage of ICWA.

Sadly, these so-called advocates have failed to understand the fact that….

They seem to want equal representation, even if it means that more black children will suffer and die from abuse and neglect.

The misuse of data and research in child welfare: home visiting and infant removals in New York State

Healthy Families New York Data and research have tremendous potential to inform policymaking, allowing us to identify population trends and to assess the effectiveness of programs. Unfortunately the increasing importance placed on these tools has resulted in their frequent misuse. One recent article in the Chronicle of Social Change, a major online child welfare publication, exemplifies typical errors often made by public officials and accepted uncritically by the media.

The article is called The Program New York Says Helped Cut Newborn Removals to Foster Care. In it, Ahmed Jallow reports that the number of infants removed into foster care in New York State has “plummeted” while the same indicator has been increasing in the majority of states. Jallow quotes unnamed “state officials” that a home visiting program called Healthy Families New York (HFNY) is “the primary reason for this reduction in infant removals” and devotes most of the article to explaining and supporting this assertion. Unfortunately, the officials Jallow quotes simply don’t have the evidence to substantiate their claims. Rather than make this clear, Jallow reports these unbacked claims without qualifications and even adds additional misleading information to bolster them. These issues can be grouped into several categories.

Attributing causality without evidence. The centerpiece of the article is the claim by New York State officials that the HFNY home visiting program is the primary reason for the reduction in infant removals in New York City. HFNY is New York’s version of one of the most popular home visiting models, which is called Healthy Families America (HFA). The difficulty of proving causality is well-known by social scientists, and journalists who write about policy should know enough to caution against accepting such blanket statements. To reduce child removals, a home visiting program would first have to reduce child maltreatment, and that reduction would have to be translated into a reduced removal rate. There are many factors that could more directly affect the number of infant removals, such as a shift in policy to prioritize keeping families together while accepting higher risks to children. And indeed, in New York City, by far the largest jurisdiction in the state, the Commissioner of the Administration on Human Services has attributed the decline in its foster care rolls to his agency’s “focus on keeping families together wherever we can.”

Making factual errors. Jallow states that “evaluations of HFNY show a significant impact in preventing further maltreatment incidents for parents involved with child protective services.” Actually, evaluations do not show a significant impact of the HFA model on child maltreatment. As a matter of fact, the respected California Evidence based Clearinghouse on Child Welfare (CEBC) gave HFA a rating of “4” for prevention of child abuse and neglect, which means that studies have failed to find that it has any effect on child maltreatment. (The only worse rating is 5, which indicates that a program may be harmful to participants.) The only evaluation that Jallow cites is an interim report from an ongoing evaluation of HFNY suggesting that the program might reduce subsequent reports among women who had a previous substantiation for abuse or neglect. However, this study was never published in a peer-reviewed journal and therefore was not included in CEBC’s review.

Misusing evidence-based practice compilations. The CEBC and other clearinghouses of evidence-based practices can be very helpful to lay audiences by digesting and translating the results of methodologically complex studies and rating programs by the strength of their evidence. But users must be careful to read and understand the reports they are using. Jallow states that the HFA home visiting model (of which HFNY is an example) “has the highest rating of effectiveness on the California Evidence-Based Clearinghouse.” But he was reading the wrong report. As mentioned above, CEBC found that HFA failed to demonstrate any effect on child abuse and neglect. It is in a separate report on home visiting programs for child well-being that HFA CEBC gave HFA its top rating (“well supported by research evidence”) because of its impact on outcomes other than child abuse and neglect.

Overgeneralization: “In terms of documented proof, home visiting is the one that we know absolutely works,” Timothy Hathaway, executive director of Prevent Child Abuse New York, told Mr. Jallow. Unfortunately, Mr. Hathaway was overgeneralizing. There are many different home visiting programs which vary based on the nature of the provider, the content of the program, the goals of the program, and other factors. The effects of most home visiting programs on child abuse and neglect have been disappointing. The only program that has been found to have well-supported evidence of an impact on child abuse and neglect from CEBC is the Nurse Family Partnership program, which is very expensive and difficult to implement, and can only be used for certain populations–like first-time mothers. It is not surprising that many jurisdictions have opted to implement HFA instead.

Disregarding recent data. In addition to all the problems cited above, Jallow and his New York State informants chose to disregard the most recent data on foster care entries in New York. Jalloh reports, accurately, that the decline in infant foster care placement between 2012 and 2016 was part of an overall decline in the number of New York children entering foster care. And as Jallow states, this decline occurred while entries into foster care increased on the national level. But the pattern was reversed in 2017: nationally, foster care entries decreased slightly, while New York’s foster care entries increased. We don’t yet have the 2017 data for infants, but it seems likely that the trend in infant removals also reversed. Could it be that New York is starting to see the same kind of increase in removals that occurred earlier in many other states? Perhaps a growing opioid crisis in western New York is contributing to this, or perhaps the increase in child removals stems from concern that the focus on family preservation is endangering children. And indeed an increase in child removals in New York City over the past 18 months has been attributed to an increase in hotline reports and a more aggressive response to these reports by investigative staff in the wake of the highly-publicized child abuse deaths of two children who were known to the system but not removed. Disregarding the most recent year of data certainly makes for a clearer picture, but but it may be a less accurate one.

Jallow’s article illustrates how a flawed understanding of research and data can lead to faulty conclusions. A grandiose claim that one program is responsible for large changes in an indicator like child removals deserves initial skepticism and rigorous vetting. Uncritical acceptance of such claims can lead to misguided policy decisions, like a decision to direct more funding to a program that is unproven. The press should scrutinize such claims assiduously, rather than accepting them credulously, presenting them without qualifications, or adding flawed arguments in favor of these claims.

Why America needs an Interstate Child Abuse and Neglect Registry

HeavenWatkins On May 18, 2018, a little girl named Heaven Watkins was found brutally beaten to death in her home in Norfolk Virginia. Three months earlier, Heaven was hospitalized with third-degree burns that kept her in the hospital for six days and required skin grafts. Child Protective Services in Norfolk was reportedly called but they decided not to intervene to protect Heaven.

Investigations from KARE 11 in Minneapolis and 13News Now in Norfolk revealed that Heaven was removed from her parents four years before in Minnesota due to concerns about physical punishment, sexual abuse, drug sales and guns in the home. Virginia DSS has refused to tell reporters whether its workers knew of the family’s history in Minnesota. The haunting question is whether Virginia would have done more to protect Heaven had they known of her history in Minnesota.

Heaven was not the only child in the care of a parent who was known to Child Protective Services in another state. A 2012 report by The Oregonian discussed several other children who died of abuse after investigation that did not unearth their family history in other states. Heaven’s story has triggered renewed calls for an interstate registry of child abuse and neglect. Had a registry existed, Virginia would have known the troubled history of this family and might have opted at least to provide supervision if not to remove the children.

The establishment of an interstate registry of child abuse and neglect was actually mandated more than a decade ago by the same legislation that mandated the national registry of sex offenders. Section 633 of the Adam Walsh Child Safety and Protection Act of 2006 required the Secretary of Health and Human Services to create a national registry of substantiated cases of child abuse and neglect. Yet this registry was never created.

Congress never appropriated funds to establish the registry but it did designate funds for a feasibility study that was also mandated under the act. A Research Report on the feasibility study and a report to Congress based on the results were published in 2012–six years after passage of the Act. The conclusions of the report were somewhat discouraging as to the potential benefits of a national registry. But interestingly, the underlying research reports had a much more positive view of the feasibility and potential benefits of the registry.

In the report to Congress, HHS emphasized the barriers to developing a functional registry. These include the Adam Walsh Act’s prohibition on including any information other than the perpetrator’s name, the need for stronger due process requirements in some states if the database were to be used for employment checks (which is not the purpose envisioned by the statute), the need to provide funding or other incentives for states to participate, and the need for legislative changes in many or most states. These are serious barriers indeed but could be addressed, albeit with new legislation and funding that would not be trivial to obtain.

Unlike HHS, the authors of the feasibility study addressed the barriers but gave first billing to the conditions that allow for the development of a registry. In the final paragraph of the research report states that “The foundations for a national registry already exist in the child protective services field given that nearly all States maintain the necessary data on child abuse and neglect perpetrators. The technical capacity of the States also supports the feasibility of a national registry.” The authors go on to discuss the barriers, but give first billing to the conditions that support the registry.

In its report to Congress, HHS concluded that even if the barriers to an interstate registry could be resolved, the registry would provided limited information “beyond what is already available from existing single state registries” and therefore “the added safety benefit of a national registry of child maltreatment perpetrators would be quite limited.” HHS concluded that a decision on whether to implement the registry should “consider whether this or alternative child safety investments would be most effective in promoting the well-being of vulnerable children.” The clear implication was that alternative investments would be advisable.

HHS drew its conclusion about the limited safety benefit of a registry from the prevalence study mentioned above. The researchers used the numbers of perpetrators with incidents in more than one state to estimate how many interstate perpetrators would be identified by a registry. Using information from 22 states with about 54% of the U.S. population, the researchers estimated that 7,852 perpetrators of child maltreatment in 2009 (or 1.5% of all substantiated perpetrators) had any substantiated maltreatment incidents in another state within the preceding five years.

HHS described 7,852 as a small number, and therefore concluded that there was “no evidence of a widespread phenomenon of child maltreatment perpetrators who offend in multiple states.” Moreover, HHS added that most of these perpetrators had “a single additional substantiation for child neglect (rather than for physical or sexual abuse) in a single additional state.” Moreover, just half of one percent of child maltreatment deaths in states participating in the study was attributed to a perpetrator who had a substantiated maltreatment report in another state (4 in total).”

HHS’ interpretations suggest a low valuation of children’s lives and freedom from suffering. Almost 8,000 interstate perpetrators in a year could be considered a large number, even if most of them were substantiated for neglect and not abuse. The downplaying of neglect is a common trope among critics of CPS intervention. but neglect can be equally dangerous and often coexists with abuse that may not be substantiated. “Just” four deaths in one year is a hard description to stomach while wondering if even one of these deaths could have been prevented with an interstate registry. Moreover, each death implies an unknown but larger number of injuries, and even more children living in pain and fear.

While dismissing the prevalence study’s estimates as “small,” HHS failed to mention the conclusion in a separate report on the prevalence study that the number of positive matches from states’ use of a fully functioning national registry would be much larger than the estimates above would indicate. That’s because the registry would be most commonly used during an investigation before a substantiation decision has been made, and the investigators would be looking for a substantiation in just one state. Therefore, the researchers concluded that the registry would likely yield “several times the number of matches” that the study found for interstate predators.

HHS also downplayed the benefits found by the Key Informants Survey–the other part of the feasibility study. Of the 36 states participating in the Key Informants Survey, 25 states said participating in a national registry would save time, and 22 states thought it would “provide more timely knowledge that would be useful in assessing child safety.” The authors of the research report concluded that “There appears to be significant interest in a national registry, primarily because States already have to inquire about possible prior perpetrator status from multiple States.” In the report to Congress, on the other hand, HHS did not report that there was significant interest by states’ in a registry. Instead, the agency reported that survey results indicated that the primary benefit of the registry would be to save time, and then cautioned that this time-saving benefit might not occur.

Similar to the key respondents, the authors of the feasibility study concluded that an interstate registry might be most useful in saving staff time and resources “resulting from the speed and efficiency of making all interstate inquiries, the vast majority of which will not find a match.” The authors added that this could enhance child safety due to faster processing of maltreatment cases. This conclusion was not included in the report to Congress.

Of course an interstate registry could not be produced quickly or on the cheap. Creating and activating it would be a multiyear effort that would have to begin with the amending of the authorizing legislation to include at least sex and date of birth in addition to perpetrator’s name. Many states would need to change their legislation as well in order to eliminate statutory barriers to participation. As the authors of the feasibility study indicated, convincing a “critical mass of states” to participate quickly might require incentives, such as funds to offset costs for initiating a registry. Clearly, an infusion of federal funds for this purpose would be a necessary incentive. Perhaps Congress could make participation in the registry mandatory in order to receive federal child welfare funds under CAPTA or better still the Social Security Act.

It is concerning that HHS under the last Administration produced such a distorted view of the Congressionally-mandated feasibility study of an interstate child abuse and neglect registry. It is my hope that this issue can be revived in the current Congress, perhaps as part of the reauthorization of CAPTA. Our children deserve no less.

Caring about Children Isn’t Racist

Well, it happened. After a lifetime of service to poor and maltreated children, I’ve been accused of racism. I knew it would happen eventually. I couldn’t keep saying with impunity that children shouldn’t be collateral damage in an attempt to avoid “punishing” parents who happen to be members of a minority group.

It was a prominent critic of government intervention to protect children who noticed an op-ed that I wrote for the Chronicle of Social Change in August 2017 and demanded a retraction.

In the offending piece, I critiqued an article in the New York Times entitled Foster Care as Punishment: The New Reality of Jane Crow. In my rebuttal, entitled Foster Care as Punishment? A Case of Biased Reporting by the New York Times, I attempted to highlight the naivete of the reporters, who accepted the statement of a birth mother that she splurged on brand-name diapers for her baby as an indicator of her fitness as a mother.

As the authors put it, “Maisha Joefield thought she was getting by pretty well as a young single mother in Brooklyn, splurging on her daughter, Deja, even though money was tight. When Deja was a baby, she bought her Luvs instead of generic diapers when she could.” The authors went on to describe the night when an exhausted Ms. Joefeld put Deja to bed and “plopped into the bath with earphones on.” Ms. Joefeld was indeed tired. Deja was placed in foster care after she was found wandering the streets of Queens at midnight after trying and failing to rouse her mother.

I thought the authors’ concept of good mothering seemed to be a little backwards, as it prioritized spending on brand names over being available to respond to a small child at any time of the day or night. So I wrote, “It is odd to me that the authors seem to consider splurging on brand-name diapers, sneakers, or apparel to be an indicator of good motherhood.”

Little did I know the firestorm I was launching. The authors had said nothing about sneakers or apparel, but I grouped them with diapers, because I was making a general point about some parents’ undue preoccupation with brand names. And those words were a trigger to to those advocates of family preservation under all circumstances who are always looking for a chance to cry racism.

In an email I received 15 months after publication of my op-ed, the Publisher of the Chronicle of Social Change told me that the Chronicle would be publishing a publisher’s note concerning my use of “racially charged language” and asked me whether I wanted to submit a statement that he would consider including.

What the Chronicle eventually published was called An Apology for a Regrettable Chronicle Op-Ed. In it the publisher and Editor state that “the trope of a low-income mom buying children designer clothes, at the expense of spending on more critical family needs, does exist as a crude and often racial stereotype.” They apologize for their “poor judgement” in allowing “a callous dismissal of a young single mother’s very human efforts to do right by her daughter” to stand. They deleted my piece from their website. And they did not publish my statement that I had sent to the publisher at his request. Here is what I said:

This statement [about brand-named diapers, clothing and shoes] was based not on racism but on my experience as a social worker in foster care. It was not unusual for birth parents to complain when foster parents dressed their kids in clothes that were not stylish or (God forbid) handed down. It was also not uncommon for them to splurge on high-end apparel or athletic shoes, or talk about splurging on them, in visits to their children. All of these behaviors together made a big impression on me. That some parents who had subjected their children to abuse or neglect seemed to care passionately about the brand of diapers, clothing or shoes their child wore seemed contradictory and illustrated a fundamental problem with their parenting.

I expressed my feelings most clearly in an adoption hearing that I will never forget. One of my favorite foster parents, an African-American woman I will call “Ms. Brown,” had petitioned to adopt “Ronald,” a little boy whom she had loved and cared for as her own for several years. “Ronald’s” father, a drug user who often showed up to visits with his son high or exploded with rage during visits, often requiring a police presence, was fighting the adoption tooth and nail with the help of his very aggressive lawyer. Through the lawyer, the father raised the issue that “Ronald” was often dressed in what seemed to be hand me downs or cheap clothes. The Judge asked for my opinion and I gave it to her. I told her how this father resembled many other birth parents, who are more concerned with the newness and style of their children’s clothes than with the safety, security and most importantly love provided by the foster parent. For me, the father’s question illustrated his inability to understand what matters to a child (love and security) and what doesn’t (brand names.) The judge cut me off, admonishing me sharply for my editorial comments. But I hope she understood. She eventually approved the adoption. I recently saw “Ronald,” and he is thriving with “Ms. Brown.”

Because I worked in the District of Columbia, most of my clients (parents and children) were African-American. If I had worked in Maine or Indiana, I have no doubt that I would have seen some of the same patterns among white parents. Perhaps it is an issue of class [to some extent]. But I think most of all it reflects parents who have not grown up sufficiently themselves to understand that their children are not dolls to be dressed up in a way that reflects well on parents and that they need love, not brand-name diapers or fancy clothes. No, my words were not racist. They were about what matters for children, and what doesn’t. Children should be at the heart of this debate, not racial groups.

Readers who have worked with abusive and neglectful parents as social workers, therapists, or in other capacities will recognize the phenomenon I describe here. The fact that neither the New York Times journalists nor the publisher of the Chronicle (who was clearly puzzled by where my reference came from if not racism) understood this shows their distance from the people they are writing about. Nor do they understand that many healthy and mature parents of all races, such as the foster parent I called “Ms. Brown,” are completely unconcerned with brand names.

I have written before, and will write again, about what has been called “the liberal dilemma of child welfare reform.” Many of my fellow liberals seem to be reluctant to “punish” parents whose problems in parenting stem from poverty and racism by taking away their children or even monitoring and offering services to these families. The whole idea of “punishing” parents, which was used in the title of the Times article, reveals the emphasis on parents’ rights over child safety. But if we succumb to this attitude, we may be condemning poor and minority children to years of suffering and even death. Is that really the anti-racist position?

Some of these who advocate family preservation at any cost are eager to describe any criticism of an African-American parent as racist. They use the fear of being called racist to suppress expressions of alternative viewpoints. As a child of Holocaust survivors, I am well aware of what can happen when fear paralyzes free speech. I was sad to see the Chronicle respond so pusillanimously the demand that I be silenced.

Why No One Saved Gabriel Fernandez

On September 13, 2018, a Los Angeles County judge denied a motion to dismiss felony child abuse and falsification of records charges against four former child welfare caseworkers in the 2013 death of ten-year-old Gabriel Fernandez. The charges, filed in 2016, marked the first time Los Angeles caseworkers were criminally charged for misconduct connected with their work, and is one of only a few similar cases nationwide.

If Gabriel’s case is one of the few child deaths to result in prosecution of state workers, the egregious nature of the state’s failure explains why. A brilliant article by investigative reporter Garret Therolf shows that for seventh months, evidence of Gabriel’s abuse steadily accumulated. Yet again and again, the Los Angeles Department of Child and Family Services (DCFS) failed to intervene. Some of the worst errors are listed below.

Gabriel’s mother had been the subject of at least four calls to the child abuse hotline, had abandoned one child, and had lost custody of a son a year older than Gabriel. Yet, this record was never reviewed by workers investigating multiple reports of suspicious injuries to Gabriel.
Each time investigators came to the home, they interviewed Gabriel and his siblings with his mother in the room, against agency policy and common sense. And each time they did so, he recanted his previous statements. Even after he came to school with his face full of bruises from being shot by his mother with a BB gun, he recanted and told the investigator the injuries were from playing tag with his siblings. In the face of visible evidence, the investigators repeatedly chose to believe the repeated recantations
Investigators never spoke with neighbors or school personnel (other than the teacher who reported the abuse) but according to Therolf the abuse was known widely among school staff.
A computer program had found Gabriel to be at “very high risk” of abuse, requiring that the case be “promoted,” usually involving asking a court to require services or foster care. But the investigator, backed up by her supervisor, referred Gabriel’s mother to voluntary family services. Gabriel’s mother Pearl Fernandez withdrew from these services after three visits.
During the brief period of voluntary services, Gabriel wrote several notes saying he wanted to kill himself. Gabriel’s therapist informed the caseworker and supervisor, but they took no action.
The therapist had grown concerned that Gabriel was being abused, but her supervisor told her not to call the hotline so as not to jeopardize the mother’s participation in the voluntary case.
After three visits, Pearl Fernandez asked for her voluntary case to be closed. The caseworker accepted her decision, stating that there were no safety or risk factors for the children. Contrary to policy, her supervisor signed off on the case closure without reading the file.
After the case was closed, a security guard at the welfare office saw Gabriel covered with cigarette burns and other marks and being yelled at by his mother. The called DCFS twice and got lost in the automated system. The 911 operator gave him the non emergency line, which he called. He was later told that a sheriff’s deputy had gone to the home and seen nothing wrong.
Gabriel’s teacher, who had lost hope of any rescue from DCFS, called the DCFS investigator one more time late in April when Gabriel showed up looking worse than she had ever seen him. One eye was blood-red, skin was peeling off his forehead, and other marks were on his face, neck and ear. Her call was never returned. Gabriel had only about a month left to live.

Investigators later learned that during the weeks before his death, Gabriel was spending days and nights locked in a cabinet with a sock in his mouth, hands tied, a bandanna over his face, and handcuffs on his ankles. His solitude was interrupted by vicious beatings and torture sessions in which his siblings were required to participate. On May 22, Pearl and Aguirre tortured Gabriel a final time with a BB gun, pepper spray, coat hangers and a baseball bat. When they finally called 911, paramedics found two skull fractures, broken ribs, several teeth knocked out, BB gun pellet marks, cigarette burns on his feet and genitals, a skinned neck, and cat feces in his throat.

Therolf poses a key question regarding Gabriel’s death: “Was [the] failure …to protect Gabriel an isolated one—the fault of four employees so careless and neglectful that they allowed a child to suffer despite a series of glaring warning signs? Or was it a systemic one, the result of a department so ill-equipped to safeguard children that tragedies were bound to happen?”

While Therolf does not actually answer the question, his report offers a number of key findings and insights that point strongly in the direction of systemic factors as the prime contributors to the failure to protect Gabriel. Therolf found that many of the errors made by investigators, such as failure to interview children alone or to speak with witnesses outside the family, were prevalent in Los Angeles County. Sadly, many of the same failures were evident in the very recent case of Anthony Avalos, also in Los Angeles. And we also see similar failures , and in cases around the country, including Kansas, New York, and Oregon.

The systemic factors that cause these failures fall into two major categories–resource constraints and ideological factors.

Resource Constraints

Child welfare involves a balancing act between too much intervention or “erring on the side of child safety” as Therolf puts it and too little or “erring on the side of family preservation.” Striking this critical balance requires a combination of knowledge, skill, and time. In other words, as Therolf puts it, “it requires a highly trained workforce with the resources to carry out a thorough investigation in every case.” Therolf rightly contends that most agencies don’t have these resources. One has only to read the constant stream of news reports of overwhelming caseloads and poor training of child welfare workers around the country. All of this reflects the unwillingness of taxpayers and legislatures to provide what is needed to protect children. Inadequate funds mean caseloads are too high and salaries are too low, both resulting in low standards for caseworkers.

More funding and could buy both lower caseloads and higher salaries, which are necessary to obtain more qualified investigative workers. After reading so many similar stories, and recalling my own rudimentary training as a Child Protective Services (CPS) worker I am beginning to think that ultimately CPS Investigation should be a specialty in Masters in Social Work Programs. Students would learn advanced interviewing skills and how to assess the truthfulness of children and adults rather than, for example, believing children when they recant allegations with their parents in the room. Alternatively, CPS Investigations could be folded into the growing field of Forensic Social Work. In any case, a Masters-level specialization could be required in order to be a CPS worker, also adding a needed level of prestige to an important, difficult and hard-to-fill job.

Ideological Constraints

Inadequate resources might result in a random distribution of agency errors between those that involve too much intervention and those that involve too little. But the dominance of a particular ideology may skew the errors in one direction or another. And Garrett Therolf alludes to the rise of an ideology prioritizing family preservation nationwide and particularly in California during the years preceding Gabriel’s death. This ideology contributed to the decline in foster care numbers around the nation and particularly in Los Angeles, where Therolf reports the number of children in foster care fell from about 50,000 in 1998 to 19,000 in 2013. Much of this decline occurred during the tenure of DCFS administrator David Sanders, who later went on to lead Casey Family Programs, a foundation worth over two billion that has played an outsize role in national child welfare policy. The same year that Sanders took over at Casey, it declared a new goal to reduce the number of children in foster care by half by 2020.

Therolf was right to point a finger at Casey Family Programs. In my post about the death of two children by child abuse in Kansas, I wrote about how Casey leverages its massive wealth to affect policy directly, bypassing the voting public. It provides financial and technical assistance to state and local agencies, conducts research, develops publications, and provides testimony to promote its views to public officials around the country. Through its wealth in an underfunded field, Casey has been able to directly influence policy at the federal, state, and local levels.

Therolf points out that opinions on child welfare often cut across traditional political groupings. While Casey tends to support progressive causes, its emphasis on family preservation is often shared by conservatives who desire to reduce the government’s incursions on parental authority and at the same time to reduce spending. Working together, Casey and the George W. Bush administration created a waiver policy that allowed child welfare agencies to direct unused foster care funds toward family preservation services–a policy change which created an incentive to reduce the use of foster care. Therolf links this incentive to the drastic decline in the Los Angeles County foster care rolls between 1998 and 2013, stating that “When Gabriel came to the attention of DCFS, the chances of an abused child being placed in foster care were “lower than they’d been in many years.”

Perhaps all of the factors that led up to Gabriel’s death can be summed up by a striking statement by the supervisor on Gabriel’s case, who is currently standing trial in Gabriel’s death. He told Therolf that he had “concluded long ago that some of the children who depended on the department would inevitably be injured, if not killed.” He expressed frustration that administration and the public expected him to prevent all such deaths. This is not an acceptable attitude. It is true that a child welfare agency cannot prevent deaths among children who are unknown to the agency. But to expect that children will die under the agency’s watch–that is a low expectation indeed. We must do better by our most vulnerable children.

Sibling Separation: An Unintended Consequence of the Family First Act?

I recently read a book that should be a must-read for all involved in child welfare policy. In Etched in Sand, Regina Calcaterra tells of being left at the age of eleven to care for her two younger siblings while her mother disappeared for weeks at a time. When she was home, her mother savagely beat the children. Chronically malnourished and living in fear, Calcaterra was responsible for feeding, clothing, and protecting her younger siblings–and making sure they looked clean and well-fed so as not to draw the attention of the authorities who might place them in foster care.

Despite her horrific childhood, the goal of Regina and her older siblings, as she said in an interview for Youtube TV, “was to never to be picked up by the authorities because when the authorities found out how we were living, they would separate us.” When Regina was finally unable to satisfactorily explain the results of a savage beating, the children were indeed taken into care and separated.

No maltreated children should have to hide their plight in order to avoid separation from each other. Yet, this is undoubtedly the situation facing many children even while you read this. I myself know two girls who, for fear of being separated, remained for two years with an uncaring guardian who diverted her guardianship stipend to her own needs. The girls only recently broke the silence, and were removed from this toxic home.

Sibling relationships are known to be critically important in emotional development in childhood and beyond, as documented in a useful publication from the Child Welfare Information Gateway. In abusive and neglectful families, sibling relationships can be even more important as siblings support each other through adverse circumstances.

Keeping siblings together in foster care provides an important element of continuity for children who have already suffered a traumatic removal from the home they had known. As the the brief cited above puts it, “For children entering care, being with their brothers and sisters promotes a sense of safety and well-being, and being separated from them can trigger grief and anxiety.” Some studies have reported poorer outcomes for children separated from their siblings in foster care.

We don’t know how many siblings are separated in foster care. Older studies indicate that a large proportion of foster children were separated from at least some of their siblings, but the proportions varied by location. Current, national data are not available.

In most cases siblings are separated for no other reason than the lack of foster homes that can accommodate siblings, especially larger sibling groups. There is a nationwide shortage of foster parents, but foster parents who are able to take more than two siblings are even more scarce.

In some states, like North Carolina and Florida, family-style group homes have been an important vehicle for keeping siblings together. Many of these homes, such as Crossnore School and Children’s Home in North Carolina and A Kid’s Place in Florida provide highly enriched services to their residents with the help of public and private philanthropic funding. These homes often use a family-style model based on houseparents that mimics a family home. Group homes are serving sibling groups in many other states, including California, Texas and New York.

Unfortunately, the recently passed Family First Prevention Services Act (FFPSA) threatens these important havens for sibling groups and may result in mass separations of siblings. That’s because FFPSA eliminates federal funding for placement of children in congregate-care settings such as group homes beyond two weeks, unless an assessment shows that a child’s needs cannot be met with family members or in a foster family home. Moreover, group facilities must meet criteria as “Qualified Residential Treatment Programs” designed to meet the needs of “children with serious emotional or behavioral disorders.”

FFPSA is based on the widely-held belief in child welfare circles that most children do better in a family than in another type of setting. However, experts such as Dave Bundy, President and CEO of the Children’s Home Society of America, believe that it is better to keep siblings together in congregate care than to split them up among separate foster homes.

Moreover, many legislators and executives pressing for closing group homes have much more than children’s best interests at heart. The greater cost of congregate care has clearly contributed to its growing unpopularity and to the bipartisan support of FFPSA. But these comparisons are often deceptive. Facilities like Crossnore and the Florida Sheriffs Youth Ranches provide therapists, case managers, after-school activities, and other services, such as therapeutic riding. Moreover, they bring in substantial private funding in addition to state support. And no matter how expensive they are, they cannot cost more than keeping children in hotels and offices when there are no homes for them, which is happening around the country.

Siblings have already been separated due to the policies against congregate care that have already taken hold in some states. From 2006 to 2015, Sonoma County Children’s Village was a haven for 24 foster children, including sibling groups, who lived in four homes staffed by “village parents,” with surrogate grandparents living in onsite apartments. But after California began to limit group home placements for children requiring high levels of care, the village had to close. Sixteen children, including a group of seven siblings, had to leave. The children were devastated. They sent out appeals to the likes of Barack Obama and Taylor Swift, but to no avail.

There is another approach to housing large sibling groups which in practice looks very similar to family-style group homes. Some child welfare agencies contract with private agencies, such as Neighbor to Family in Florida and Georgia, that provide homes where siblings can live together in foster care. Some of these programs actually provide larger houses in clusters or “neighborhoods” to foster parents willing to care for large sibling groups but who don’t have the space. This clustering provides the added benefit of community support and shared facilities for recreation and other activities. Such programs include the SOS Children’s Villages in Illinois and Florida. New homes are currently being built in locations around the country including Oklahoma, and Southwest Florida. However these programs are too few and far between to make a dent on the national problem of sibling separation in foster care.

Perhaps all the group homes that keep siblings together could eventually be replaced by family foster homes with housing provided by public and private agencies. The feasibility of this approach would have to be investigated; it might be even harder to find good foster parents than it is to find good houseparents, because the latter generally have a schedule that allows time off to return to their own residences, while being replaced by a substitute couple. In any case, such a transition would take years to accomplish and could not occur in the short period preceding the implementation of the FFPSA provisions, which go into effect on October 1, 2019. States can apply for a two-year delay in implementing these provisions but then they must forego the opportunity to received federal matching funds for services to prevent foster care placements. (For a detailed explanation, see the “Cliffs’ Notes on Family First” from the Chronicle of Social Change.)

The sponsors and supporters of FFPSA likely had no idea that sibling separation might be a consequence of their legislation. Once they understand what they have done, I hope they will consider amending FFPSA to make congregate care allowable for sibling groups and provide a new funding stream to encourage jurisdictions to build foster home communities where siblings can thrive together.

No, family separations are not all the same

There is an old political adage that you should “never let a crisis go to waste,” meaning that a crisis can awaken public interest and create an opportunity to advance policies that might otherwise be unachievable.

President Franklin D. Roosevelt, for instance, was able to pass much of his New Deal – including a dramatic expansion of the country’s social safety net via the Social Security Act – in the wake of the Great Depression with the American economy in shambles and the American public desperate for government support.

Unfortunately, in a cruel twist of irony, some child advocates are now using the devastation wrought by the Trump administration’s separation of children from their parents at the U.S.-Mexico border to advance arguments undermining a key part of the Social Security Act – support for children who cannot be cared for in their own homes.

Several weeks ago, Sherry Lachman, the executive director of Foster America, authored a Time essay suggesting “family separation is not just a problem at the border.” In this piece, Lachman bizarrely equates the separations at the border with removals of U.S. children from their homes by child protective services, suggesting even the latter are “inherently toxic.”

And last week, Vivek Sankaran associated the two systems, misleadingly citing statements in an opinion piece that were made about the border separations to attack child removals by child protective services – without disclosing that these statements actually referred to the latter rather than the former. Sankaran quotes Dr. Charles Nelson, professor of pediatrics at Harvard, as follows: “[T]here is so much research on [child removal] that if people paid attention at all to the science, they would never do this.”

Finding it hard to believe that a distinguished Harvard professor would suggest that children should never be removed into foster care, we contacted Dr. Nelson, who explained that his words were taken out of context, as he was referring to separations at the U.S.-Mexico border and not the removal of children from abusive or neglectful homes. Dr. Nelson agreed that any comparison of the two systems is misconceived, noting: “It is inappropriate to compare children experiencing forced separations from their parents in the context of migration to children removed from parental care due to maltreatment (abuse, neglect).”

The separation of children from their parents at the U.S.-Mexico border was an ill-conceived policy that arose from the desire to discourage migration. Rather than being aimed at protecting children, this policy was adopted despite the obvious fact that it would be extremely harmful to them.

The child welfare system, on the other hand, was created to protect children from harm inflicted by their own parents or guardians. It is a sad fact that some homes are dangerous to their own children. Forty-nine states reported 1,700 child fatalities due to abuse or neglect in 2016, and there is wide consensus that this is likely an under count. We don’t know how many more are severely injured but survive; it is doubtless much higher.

And deaths and severe injuries are only the tip of the iceberg. There is extensive literature on the lifelong consequences of child abuse and neglect. These include chronic health conditions, impaired brain development, poor mental and emotional health, social difficulties, juvenile delinquency and adult criminality, alcohol and drug abuse, and an increased likelihood of abusing one’s own children.

Moreover, foster care is a rarely-used intervention by CPS. Most systems try hard to keep children at home by providing services to the parents to help remedy the conditions that caused the maltreatment. In 2016, according to federal data, agencies placed slightly over 200,000 children involved in maltreatment investigations in foster care and provided other post-investigation services to about 1.1 million children and families.

Yes, removing children from their parents is often traumatic to the child. But it goes without saying that in some terrible home situations, the damage to a child of staying in the current home would be greater than the damage caused by removal.

As Dr. Nelson puts it:

Of course we would like to see the biological parents be successful in changing the family dynamics and preserving the parent-child relationship but if that is impossible, and the harms to the child continue, then the child should be removed from the home, either temporarily, if the home situation can be remedied, or permanently.

But, it is of utmost importance to act with alacrity – I think in many cases children are left for far too long in their biological homes and by the time they are placed into foster care or adoptive care, they may be irreparably harmed.

Setting aside the vastly different reasons for, and targets of, family separations at the border and child removals by child protective services, there are huge differences between the two sets of policies. Cathy Senderling-McDonald recently wrote an instructive and comprehensive summary of the distinctions, outlining the vast differences in living conditions, objectives, legal structure and oversight.

Using the suffering of parents and children at the border to denigrate foster care is not merely an illogical comparison, it is a harmful one that can result in suffering, lifelong damage, and even death to children. Moreover, it is offensive to those professionals who have devoted their lives to protecting children, and to the children who have suffered and died for lack of such protection.

Let us be clear: we want to prevent children from being removed from their parents whenever it is safe and appropriate to do so.

But let us be equally clear: until we eliminate serious child maltreatment and endangerment from every home, there will always be a need for foster care to keep kids safe. To pretend otherwise is naïve, dangerous and irresponsible.

This op-ed was published in the Chronicle of Social Change on September 6, 2018. I wrote it with Sean Hughes, the director of government relations for the consulting firm Social Change Partners.