CIVIL LIBERTIES WITHOUT EXCEPTION:

NCCPR’s Due Process Agenda for Children and Families

By Richard Wexler, NCCPR Executive Director
August, 2008, Updated September, 2015, Updated March, 2017

INTRODUCTION
Suppose Attorney General Jeff Sessions were to propose anti-terrorism legislation
with the following provisions:
Special anti-terrorism police could search any home without a warrant – and
stripsearch any occupant -- based solely on an anonymous telephone tip. Any occupant of
the home could be detained for 24 hours to two weeks without so much as a hearing – and
they’ll probably be detained far longer because, in the special anti-terrorism court set up by
this legislation, all the judges are afraid to look soft on “terrorists.”
At that first hearing the detainees may – or may not – get a lawyer just before the
hearing begins, and they almost never get effective counsel.
At almost every stage, the standard of proof is not “beyond a reasonable doubt” or
even “clear and convincing” but merely “preponderance of the evidence,” the lowest stand-
ard in American jurisprudence, the same one used to determine which insurance company
pays for a fender-bender.
And in most states, all the hearings and all the records are secret.
Were Sessions ever to propose such legislation, it’s reasonable to expect that civil
libertarians will respond with even more fury than they did to the Trump Administration’s
attempt to bar people from predominantly Muslim nations from entering the country.
Yet this hypothetical anti-terrorism law already is the law governing child welfare.
And sadly, many who in other circumstances are quick to defend civil liberties either stand
silent or support it.
The National Coalition for Child Protection Reform believes the only way truly to
protect children is to demand civil liberties without exception. There can be no true child
protection when a government agency is given virtually unchecked power, almost no ac-
countability, and operates in secret.
That is why enacting meaningful due process protections for families is at least as
important as improving the “services” they receive from child welfare agencies.
Since 2000, NCCPR has issued more than 30 reports on 20 state or local child
welfare systems. Below are some of the due process recommendations from these various
reports.

Hearings and records would be

RECOMMENDATION 1: closed only if the lawyer for the parents
TRANSPARENCY or the guardian ad litem for the child
All court hearings in cases where could persuade the judge, by clear and
child abuse or neglect is alleged and convincing evidence, that opening a given
almost all documents should be subject to record or portion of a hearing would
a “rebuttable presumption” of openness. cause severe harm to a child.
DUE PROCESS AGENDA/2

The judge then would keep closed simply by hiring people with more expertise
only the minimum amount of material and assuming they will do the right thing.
needed to avoid the damage. It’s not supposed to work that way in
The people who work for child pro- a democracy. That is why it is so urgent that
tective services (CPS) agencies are not evil. all court hearings and almost all records in
But even the best of us would have trouble child welfare cases be presumed open.
coping with nearly unlimited power and no An exception would be made to the
accountability. One caseworker allegedly presumption of openness for portions of
told some parents: “I have the power of documents that name people who reported
God.” It’s alarming if he said it. But what’s child abuse in confidence. Even then, how-
even more alarming is: It’s true. Casework- ever, if a parent claims to be a victim of
ers for CPS agencies do have the power of harassment, that parent should be allowed to
God. ask a judge to review the record and, if the
judge agrees there has been harassment,
open this record as well, and give the ac-
cused the right to sue. (See Recommenda-
“[Opening family courts] tion 9).
has been 100 percent positive Only the lawyer for a parent and the
with no negatives … Our guardian ad litem for a child should be al-
lowed to request secrecy. CPS should not
worst critics will say it was the even be allowed to ask for it. CPS has no
best thing we ever did. Their interest in secrecy other than as a way to
fears were unfounded … I cover up its failings. If secrecy truly is
needed to protect a child, that’s what the
wish other states would do it.” lawyers for the child and the parents are
--Jonathan Lippman, there to ask for.
Former Chief Administrative Judge, The argument against opening hear-
State of New York ings and records is that it would embarrass
children.
That argument fails on several
To give a young, inexperienced counts:
worker the power of God, send her out on  The alleged potential for trauma
what she is convinced is a godly mission to does not explain why information is kept
rescue innocent children from the scum of secret even after a child has died.
the earth -- knowing that there will be no  In the overwhelming majority of
penalty for removal and hell to pay if she cases there are no graphic details to report.
leaves the child home and something goes Most cases involve “neglect.” A child will
wrong -- and then expect her to exercise not be testifying about being beaten or raped
self-restraint is more than can be expected of because that’s not the accusation.
most human beings. Rarely is the power of  The most traumatic cases are likely
God accompanied by the wisdom of Solo- to involve not only child protection proceed-
mon. ings but criminal cases as well. These hear-
The power must be checked by ac- ings already are public. Yet we have never
countability. Accountability is not possible seen nor heard a single account of a child
in secret. Nor is accountability possible saying that she or he was traumatized by the
fact that such a trial was public. Nor do we
DUE PROCESS AGENDA/3

know of any adult coming forward years It’s also helped raise fees paid to the lawyers
after the fact to complain of such trauma. who defend impoverished parents – from
 At least 14 states have opened $40 an hour in court and $25 an hour out of
child protection proceedings to the press and court, to $75 an hour for both - still not
the public. Two more let in reporters only. nearly enough, but an improvement.
Because these include some of the largest Opening New York’s family courts
jurisdictions in the country, such as New probably also helped build support for New
York, Florida, Texas, and Illinois, NCCPR York City’s initiative to create an adequate-
estimates that roughly 41 percent of all fos- ly-funded institutional provider of counsel
ter children live in a place where court hear- for birth parents in many cases. (See Rec-
ings are open. ommendation 4).
In every one of these places, the The head of New York City’s child
same fears were expressed. But a compre- welfare agency when the courts were
hensive nationwide examination by the opened, Nicholas Scoppetta, said opening up
Pittsburgh Post-Gazette found that none of the process helped him improve his agency.
the problems materialized. Indeed, over and “We have not experienced a downside,” he
over, one-time critics became converts.1 said.2
“Everyone complains about every- New York is not alone. In Illinois,
thing in New York,” said Judith Kaye when the press has been allowed into juvenile
she was chief judge of that state’s highest court for more than a century. The former
court, the Court of Appeals. But, she says, head of the state’s child welfare agency, Jess
in the years since she ordered all of the McDonald, says the public should be al-
state’s family courts opened, “we’ve had no lowed in, too. “We will only make mistakes
complaints about this.” if we are hidden in the back room,” McDon-
Her deputy at the time, and then her ald says.
successor as Chief Judge, Jonathan Lipp- The reform-minded head of Alleghe-
man, said “It has been 100 percent positive ny County, Pennsylvania’s child welfare
with no negatives … Our worst critics will system, Marc Cherna, also supports opening
say it was the best thing we ever did. Their hearings. And he supported the county’s
fears were unfounded … I wish other states judges when they agreed to give regular
would do it.” access to a reporter from the Post-Gazette.
One of those who initially opposed In Oregon, hearings in abuse and ne-
the change was Michael Gage, former ad- glect cases have been open for more than 25
ministrative judge of the New York City years. “The appearance of being treated
family court. But now, Gage says, “I think fairly is compromised when things are done
it worked. From my view, it worked re- in secret,” says Oregon Circuit Judge Daniel
markably well.” Murphy. “People are suspicious of anything
Another opponent was Jane Spinak, done secretly.”
then head of the Juvenile Rights Division of But perhaps most revealing is this:
the Legal Aid Society in New York City. Of all the states to open proceedings, only
But, Spinak says, “the consensus now is that one allowed them to close again – when a
[the court] is better open than when it was limited experiment in Connecticut ended.
closed.” Everywhere else, the courts stayed
Once the courts were opened, report- open. For example, after three years of
ers saw the shabby conditions families had experimenting in 12 counties, the Minnesota
to endure. That led to funding for repairs. Supreme Court opened courts in child mal-
DUE PROCESS AGENDA/4

treatment cases statewide.3 Surely if the This, of course, goes much farther
experiment had been traumatizing children, than most state laws. But it also is more
it never would have been expanded. than most news organizations have sought
And as noted above, about 41 per- when it comes to case records. News organ-
cent of America’s foster children now live in izations generally seek transparency only in
places where court hearings are open. Sure- cases of child abuse fatalities.
ly, if this had been traumatizing children,
there would have been an avalanche of
complaints. That hasn’t happened.
That shouldn’t come as a surprise. “Sunshine is good for
Cases covered by the media are likely to fall Children.”
into these categories: --Judith Kaye, former Chief Judge,
 Cases where the child has been New York State Court of Appeals.
killed.
 Cases where the alleged abuse is so
brutal that the details already are public While that is better than nothing, it
knowledge because of police reports. These has an unintended consequence: This limited
cases also are likely to be the subject of degree of openness reinforces the misper-
public, criminal proceedings. ception that the system errs only in one
 Overview stories about court sys- direction, leaving children in dangerous
tems, in which case examples can be used homes.4
without revealing names. The thousands of families who say
No state court judge in America had their children were wrongfully removed still
a better reputation for concern about the have no way to prove it; they remain thwart-
welfare of children than the late Judge Kaye ed by a “veto of silence.”
in New York. For years after courts were They can tell their stories to report-
opened in that state, she stood by what she ers, but even if they have some limited doc-
said at the time: umentation, the reporters may decline to
“Sunshine is good for children.” write about the case, rather than risk the
RECOMMENDATION 2: OPEN possibility that people at CPS are telling the
RECORDS. Reverse the current pre- truth when they heave meaningful sighs and
sumption that most child welfare records say, as they so often do, “Oh, there’s really
are closed, and allow child welfare agen- so much more to it, and we wish we could
cies to comment freely on any case made tell you, but our hands are tied: Confidenti-
public by any other source. ality, you know.” Or reporters themselves
As noted above, roughly 14 states al- may use this as an excuse to avoid doing
low the press and public into court hearings stories that challenge their own precon-
in child abuse cases. ceived notions.
This provides more accountability If almost all CPS records were avail-
than exists in states where the entire process able to the public, reporters would have a
is secret. But it is not enough. much better look at all sides of the story.
The amount that can be learned from (Records are not always accurate, however,
what is often a cursory hearing lasting only a and claims in them should not be accepted at
few minutes is limited. Therefore it also is face value.)
urgent to reverse the current presumption Therefore, there should be a “rebut-
that case records are closed. table presumption” that almost all case rec-
DUE PROCESS AGENDA/5

ords are open. As noted above, the names of from hiding behind dubious claims of confi-
people reporting alleged maltreatment al- dentiality.)
most always would remain confidential. Such a law serves two valuable pur-
Most other records would be opened unless poses. First, it will encourage reporters to
the lawyer for the parents or the law guardi- override the veto of silence. No longer
an for the child could persuade the judge, by could CPS say it wished it could talk but it
clear and convincing evidence, that opening could not. Now reporters would know the
a given record would cause severe emotional agency was stonewalling. Conversely, when
damage to a child. CPS is right, it’s important that the public
know it. The agency should have the right
to vindicate itself.
RECOMMENDATION 4: Quality
“Dependency court legal representation must be available to
remains a secretive, insular all parents who must face CPS.
place where the rights of It is ludicrous to claim that children
are protected from needless removal when
indigent parents to effective their impoverished parents often are, literal-
representation are sacrificed ly, defense-less.
in favor of judicial expediency In some states, indigent parents have
no right to counsel until the very end of the
and entrenched insider process, the termination of parental rights
groups.” stage. In most states, they don’t get a law-
-- Michael Kresser, Executive Director, yer until moments before – or right after –
Sixth District Appellate Program, the first court hearing, which often is, in
California. fact, the most important, since that’s where
judges routinely ratify removals that case-
workers have made on their own authority.
Even when parents get a lawyer, it is
The judge then would keep closed
likely to be a grossly overworked, underpaid
only the minimum amount of material need-
attorney who has time to do nothing more
ed to avoid the damage.
than tell parents to give in to whatever CPS
RECOMMENDATION 3: Child
wants if they ever want to see their children
welfare agencies should be free to com-
again.
ment on any case that has been made
An assessment from the director of a
public by any other source. For example,
program co-coordinating appeals for indi-
if a parent goes to a reporter and says
gent parents in California could apply to
“my child was wrongfully taken,” CPS
almost any state or county in America.
should be free to tell its side of the story,
Said Michael Kresser, executive di-
as well as to release records under the
rector of California’s Sixth District Appel-
conditions noted above.
late Program: “Dependency court remains a
At least four states have such laws,
secretive, insular place where the rights of
with varying degrees of limitations. The
indigent parents to effective representation
broadest we know of is in Arizona, where
are sacrificed in favor of judicial expediency
the child welfare agency is free to “confirm,
and entrenched insider groups.”6
clarify or correct” any material about a case
This system needs to be replaced
made public by anyone else.5 (Unfortunate-
with one which guarantees indigent parents
ly, that has not stopped CPS in that state
 Leveling the playing field in two states
In Pierce County, Washington, the judge in charge of the county’s juvenile courts was
dismayed at the escalating rate of terminations of parental rights – knowing that he was
dooming some of the children to a miserable existence in foster care.
So he persuaded the legislature to provide enough money for defense attorneys to
have resources equal to those of the Attorney General’s office, which represents the state
child welfare agency in juvenile court. The result: successful reunification of families
increased by more than 50 percent.
And that’s not because lawyers “got their clients off.”
Where the parents are innocent, lawyers have time to prove it. Where there is a
problem in the home that must be corrected, the lawyers have time to sit down with the
parents, explain early on what they are up against and guide them through the process of
making whatever changes are needed. They also can advocate for more and better services
geared to what families really need, instead of the cookie-cutter “service plans” often offered
by child welfare agencies.
Between 2000 and 2003, of 144 cases in the program in which families were reunified,
not one was brought back to court.
“These children aren’t coming back,” says then-Washington State Supreme Court
Justice Bobbie Bridge, a supporter of the program, “and we do get them back when we make
bad reunification decisions.”
The National Council of Juvenile and Family Court Judges is publicizing the results,
and even the State Attorney General at the time, who had to face the better-prepared lawyers,
7
supported the project and wanted it expanded.
A 2011 evaluation found that in counties that have this kind of representation children
are reunified more quickly. And when reunification really isn’t possible, guardianship and
8
adoption occur more quickly as well.
New York City provides similar representation for half of all indigent parents in four of
the city’s five boroughs. The city does this with the support of its child welfare agency, the
Administration for Children’s Services. This is because ACS recognizes that it is not infallible,
and recognizes the role lawyers for parents can play in fighting for help for families.
It’s also probably because, while at the Annie E. Casey Foundation, before becoming
ACS Commissioner (a job he left in September, 2011) John Mattingly co-authored a scathing
report on how the city’s Family Courts ran roughshod over families. The report quoted judges
admitting they routinely rubber-stamped removals even when they thought ACS failed to make
its case, because they were afraid of winding up on the front page if they sent a child home
9
and something went wrong.
The Center for Family Representation holds the contracts to provide this representation
10
in Manhattan and Queens.
Since 2004, CFR has pioneered a model of team representation.
The family is represented by an attorney, a social worker and a parent advocate, de-
scribed by CFR as “a parent who has directly experienced the child protective and foster care
systems and has successfully reunified with his/her child.”
CFR reports that the children represented this way
“spend, on average, 73 percent less time in foster care than children in the city and state and
in 50 percent of our cases, children never enter care at all, but instead stay at home with the
11
services needed to help them stay safe and thrive.”
CFR reports that the results are even better when their teams can reach a family during
an investigation but before the family is charged. In those cases, placement was avoided 95
percent of the time.
It’s also cost-effective. In New York it costs an average of $49,188 to keep one child in
foster care for a year. The costs range from an average of $25,000 per year per child in a fami-
ly foster home to $92,000 per year per child for a group home or institution. In contrast, the
City estimates the average cost of a year of preventive services, for an entire family, at
12 13
$10,000. And CFR can represent an entire family for $4,000 to $6,000.
DUE PROCESS AGENDA/7

a lawyer from at least the moment the child fight for what the guardian thinks is best for
is removed – or the moment an agency de- the child – even if the child disagrees. The
cides to go to court to place a family under guardian may make the court aware of what
its supervision -- even while leaving the the child wants but, if the guardian thinks
children at home. Every county, or the state, that is bad for the child, the guardian fights
should be required to establish an institu- against the child’s wishes. That can mean
tional provider of defense counsel with re- that the only parties without strong advo-
sources at least equal to those available to cates in their corners are the parents – and
the lawyers who represent the child welfare the child.
agency.
Providing “law guardians” for chil-
dren is not enough to protect them from
wrongful removal, for two reasons. There always will be
First, law guardians tend to rubber- screening in child welfare.
stamp child welfare agencies, fighting them, The choice is not between
if at all, only when the agencies want to
return children home. They are often too screening and no screening.
overwhelmed to do an independent investi- The choice is between
gation and, even when they can, they tend to rational screening and
buy into the same take-the-child-and-run
mentality that dominates child welfare agen- irrational screening.
cies. (Anyone who doubts this should put a
simple two-question test to law guardians:
How many times, when CPS wants to return Of course, the fact that a child wants
a child home, do you disagree? How many a particular outcome doesn’t mean he or she
times, when CPS wants to hold a child in should get it. And some children are too
foster care, do you disagree?) The second young to express a rational preference, or
problem with relying on law guardians is any preference at all. But deciding what’s
discussed in Recommendation 6. best is what judges are for. And they can’t
RECOMMENDATION 5: The in- truly do justice unless everyone has an ad-
stitutional provider of counsel should vocate making the best possible case for his
have lawyers available 24-hours-a-day, or her side.
seven-days-a-week, so that they can begin RECOMMENDATION 7: Before
to work on a case from the moment a child a call is accepted by a child abuse “hot-
is removed from the home instead of only at line” and referred for investigation, the
or after the first hearing – or even later – as caller must be able to demonstrate that
usually is the case now. s/he does, indeed, have “reasonable cause
RECOMMENDATION 6: Law to suspect” maltreatment.
guardians should act as lawyers. Guardi- The caller must be able to offer
ans ad litem (GALs) should advocate for something more than a guess that a child
what the children they represent want, really is being abused or neglected. To help
even if the GAL does not think it’s in the hotline operators accomplish this goal:
child’s best interests. RECOMMENDATION 8: A ra-
In New York State, Judge Kaye or- tional method must be established for
dered GALs to take this approach. But in screening hotline calls.
most states, the job of the guardian is to
DUE PROCESS AGENDA/8

Child abuse hotlines vary in their harassment, the name should be released to
power to screen in or screen out calls. In the accused, who should have the right to
some states, virtually every call, no matter sue for damages.
how absurd, must be passed on. This only Of course, the objection to banning
further overwhelms workers making it less anonymous reports, and the objection to any
likely that they will be able to investigate kind of serious screening mechanism, is that
any case carefully – and less likely that they some anonymous calls may be legitimate.
will find children in real danger. That’s true.
Every hotline needs to have a proto- If you ban anonymous reports, some
col of questions to be asked of callers to real cases might be missed – though anyone
determine if the case rises to a level requir- who is sincere and has genuine reason to
ing an investigation. suspect maltreatment should be comfortable
RECOMMENDATION 9: Anon- with confidential reporting.
ymous calls should not be accepted. But more real cases are missed now
Of all the sources of child abuse re- by overloading the system.
ports, anonymous reports consistently are There always will be screening in
the least reliable. They’re almost always child welfare. The choice is not between
wrong. screening and no screening. The choice is
A study of every anonymous report between rational screening and irrational
received in the Bronx, New York, over a screening. The more cases that cascade
two year period found that only 12.4 percent down upon investigators the less time they
met the incredibly low criteria for “substan- get for each one. So some get short shrift.
tiating” reports – and not one of those cases It is far safer for children if cases are
involved death or serious injury. The re- screened rationally by eliminating anony-
searchers found that “one case was indicated mous reports, rather than irrationally based
for ‘diaper rash’ one case for welfare fraud, on which file floats to the top of the pile on
and two cases because the apartment was a caseworker’s desk.
‘dirty.’”14 As the authors of the Bronx study
Anonymous reporting should be re- put it, in recommending that anonymous
placed by confidential reporting. If some- reports be rejected: “The resources of child
one who may have a grudge or someone protective agencies are not limitless. The
who simply may be clueless wants to claim time and energy spent investigating false
that, say, a neighbor is abusing a child, that reports could better be given to more serious
person should be required to give the hotline cases, and children may suffer less as a
operator his or her name and phone number. result.”15
That information still should be kept secret RECOMMENDATION 10: No
from the accused in almost all cases, but the one should be listed in a central register
hotline needs to know. That will immediate- of alleged child abusers, and no allegation
ly discourage false and trivial reports. should be substantiated, until, at a mini-
As noted in the recommendation on mum, the family has had an administra-
records, the law should allow the accused to tive hearing conducted by a hearing of-
go to a judge and explain why he feels he is ficer outside of the child welfare agency.
being harassed by false reports, and by The standard of proof should be “clear
whom. The judge should check the record and convincing.”
and, if the accused is right, and if the judge All states have massive databases
is persuaded that the reports are an act of listing everyone caseworkers suspect of
DUE PROCESS AGENDA/9

being a child abuser. Most databases also that court found the central register process
include the names of people even when the unconstitutional on a variety of grounds
accusation was determined to be “unfound- including the fact that, while it was possible
ed.” to appeal, the process was incredibly cum-
This poses enormous risks to chil- bersome and lengthy.
dren. Anyone can be declared a child abuser One key point that was common to
based on no more than a caseworker’s guess. these cases: In both Illinois and New York,
All she has to do is check a box on the form. when people did manage to appeal, the orig-
Then the accused must fight her or his way inal finding of abuse or neglect was over-
out. turned 75 percent of the time.
In some cases, there is no way to The Missouri Supreme Court has
fight your way out at all. Some states allow ruled that no one can be listed in that state’s
for no appeal of this decision. In other Central Register without an administrative
states, the appeal process is long and cum- hearing first.18 In North Carolina a court
bersome. hearing is required first.19
As always, CPS agencies will claim
that any curb on their power to effectively
blacklist anyone they choose will compro-
In child welfare, where mise their ability to protect children. In fact,
there’s smoke, there often is depriving people of employment based on
only smoke – and no one can rumor and innuendo is enormously harmful
to children.
see clearly through smoke. ● Obviously, if a parent can't get
work, that will affect his or her children.
● If information based on little more
Yet a listing in a central register can than a caseworker's guess is allowed to pile
have profound consequences. In many up in secret files, sooner or later some CPS
states it effectively bars employment in worker is likely to claim that there is a "pat-
fields dealing with children. tern" and use that as the basis to take away
Four states have been forced by the children.
courts to bolster protections for the accused, Children need protection from the
though the protections still don’t go far mindless piling up of rumor and innuendo in
enough. files about their families.
In Valmonte v. Bane,16 the U.S. This is particularly true when un-
Court of Appeals for the Second Circuit founded reports are kept. These are files on
ruled that even though New York State does people who usually are so innocent that even
have an appeals process, it did not provide the meager amount of evidence needed for
adequate protection for the accused. Such one worker to substantiate the allegation
protection is needed, the court ruled, be- couldn't be found. Keeping such reports is
cause listing someone who works with chil- an incentive for people to use the system for
dren in the state's central register of alleged harassment. Make enough anonymous calls,
child abusers almost always deprives the set off enough investigations, and sooner or
accused of employment in their chosen field. later something is bound to stick. Therefore:
The second decision, handed down RECOMMENDATION 11: When
by a federal district court in Illinois, is even a report is “unfounded” all records
more sweeping. In DuPuy v. McDonald 17 should be expunged within 30 days.20
DUE PROCESS AGENDA/10

The reason unfounded reports should This idea was first proposed as part
be expunged is the same reason CPS agen- of a very good model law written by Prof.
cies want to keep them. Once again, they Michael Wald of Stanford University Law
say they are needed to detect “patterns” or, School in 1976, and revised by an American
as they often like to put it “where there’s Bar Association Committee in 1981.
smoke, there’s fire.” But a pattern of rumor A requirement for daily visits, unless
and innuendo is so misleading that it is CPS can show by clear and convincing evi-
worse than no pattern at all. In child wel- dence that this would cause severe and last-
fare, where there’s smoke, there often is ing emotional trauma to the child, (physical
only smoke – and no one can see clearly trauma can be prevented by having the visits
through smoke. Furthermore: supervised) will help ease the trauma of the
● If you make it too easy for a work- removal itself.
er to accuse the most convenient suspect, list CPS will scream about how burden-
them as "substantiated" child abusers and some it is. But that’s the idea. If a CPS
move on, there is a good chance that in situ- worker knows that taking a child on his or
ations where there really is abuse, the wrong her own authority will be followed by a
person will be accused - and someone who requirement that he or she set up several
really is guilty never will be caught. days worth of visits, that worker might be
● And, perhaps most important, more careful about who is taken away.
these listings are not necessarily limited to RECOMMENDATION 13: All in-
adults. Children themselves can be listed as terviews conducted by CPS personnel in
child abusers. In the lead case in DuPuy the the course of child maltreatment investi-
accused was a ten-year-old girl who was gations – not just interviews with children
accused of sexual abuse after she pulled up – should be, at a minimum, audiotaped,
the pants of some much younger boys who and preferably videotaped. Interviewees
were "playing doctor" in the day care home must be informed that their statements
run by her family. are being recorded. Information from any
As the appeals process dragged on interview that is not taped should be in-
and on, the child became so depressed that admissible in all court proceedings.
at one point she attempted suicide. In an age of smartphones with audio
RECOMMENDATION 12: From and sometimes video recording capability
the moment a child is removed until the anything less than requiring that all inter-
first hearing at which all sides are repre- views be taped is extremely dangerous to
sented, the child welfare agency shall be children.
responsible for arranging daily visits, The most obvious danger is reflected
unless it can show, by clear and convinc- in the mass molestation hysteria of the
ing evidence, that this would cause severe 1980s, in which hundreds of children in
emotional harm to the child. cases such as the McMartin Preschool were
This would help ease the emotional pressured into saying what interrogators
trauma done to the overwhelming majority wanted to hear. Only the existence of tape
of children by the act of removal itself. But recordings prevented even worse miscar-
it also serves another purpose. riages of justice.
There are very few “front door” But it’s just as important to tape rec-
methods to prevent wrongful removal of ord interviews with everyone else. Over and
children. This is a way of getting at the over again, all over the country, one hears
problem through the “back door.” the same refrain from victimized families:
DUE PROCESS AGENDA/11

The worker was selective. The worker that a child was manipulated or a parent’s
wrote down only what supported her posi- comments were distorted if there is a tape
tion and ignored the rest. that proves otherwise.
And it’s not just aggrieved parents Even when it is clear that workers
expressing these concerns. In a scathing are not lying – and in most cases, they prob-
decision, a juvenile court judge in Connecti- ably do not misrepresent facts on purpose --
cut blasted that state’s child welfare agency taping still is essential.
for "an appalling combination of arrogance A basic tenet of communications
and ineptitude.” She ruled that CPS deliber- theory is that people tend to hear what they
ately left out exculpatory information in want to hear or what they expect to hear.
order to obtain emergency removal of a Everything we hear is filtered through our
child. The judge wrote: life experiences, our beliefs, and our preju-
dices. There is no excuse not to require that
There is no other purpose for this af-
every interview done by a CPS worker in the
fidavit other than to mislead the court into
field be, at a minimum, audiotaped and
believing that [the child] was in immediate
every interview done at a CPS office or
physical danger from her surroundings and
similar facility be videotaped.
only her immediate physical removal ...
As important as requiring taping it-
would ensure her safety. The court finds that
self is a requirement that interviews that are
[the Connecticut child welfare agency]
not taped be treated, in effect, as though they
intended to manipulate the facts to obtain an
don’t exist.
order that it knew the facts could not justify.
In criminal cases, evidence obtained
The judge felt compelled to encour- improperly cannot be admitted – no matter
age Connecticut CPS to remind its workers how compelling that evidence may be. The
of the punishment for perjury.21 requirement is an attempt to be sure that
A former family court judge on Stat- police are scrupulous about the rights of
en Island, New York wrote this: citizens when they gather evidence.
If taping is “required,” but notes
While I found the majority of child care
agencies to be caring and trustworthy, there from interviews that were not taped still can
were enough instances of deceptive agency be used in court, it is an invitation for apps
reports that I decided to order independent to “fail,” workers to “forget” and batteries to
investigations of every agency adoption case “die” on a regular basis.
that came before me. It's a course of action that RECOMMENDATION 14: The
remains prudent today.22 standard of proof in all court proceedings
And in California, caseworkers should be raised from the current stand-
claimed what amounted to a constitutional ard in most states, “preponderance of the
right to lie in court.23 Fortunately, an appel- evidence,” to “clear and convincing.” The
late court rejected the argument.24 standard also should apply when a work-
If a CPS agency wants to claim that er decides to “substantiate” alleged mal-
kind of thing never happens in its own state, treatment.
then let the agency prove it. Tape all the There are few punishments one can
interviews, and then the people will know. inflict on a child that are more severe than
Indeed, CPS should welcome this require- needlessly tearing away her or his family.
ment, since it isn’t just a way to protect the And yet, when it’s time for courts to decide
innocent – it’s a way to convict the guilty. to place a child in foster care, they do not
A defense lawyer can’t successfully claim apply the standard used to convict someone
DUE PROCESS AGENDA/12

accused of murdering a child, “beyond a movals of children. In addition, it may in-

reasonable doubt,” or even the middle crease the chances of bad decisions being
standard, “clear and convincing” evidence. overturned on appeal.
Instead, courts in most states apply the low- RECOMMENDATION15: Abolish
est standard of proof, “preponderance of the legal “ransom.”
evidence.” As we noted at the start of this That’s not what it’s called, or course.
report, this is the same standard used to But many states require impoverished par-
decide which insurance company pays for a ents to dig themselves deeper into poverty in
fender-bender. order to help reimburse the state that took
Only at the very end, when the issue away their children for the cost of “care.”
is termination of parental rights, does the When someone takes away a child
standard rise to “clear and convincing” – and demands money to give the child back,
and it took a U.S Supreme Court case to there’s a word for that payment: Ransom.
make that the law of the land in all 50
states.25
The “clear and convincing” standard
should be the standard for every decision, When someone takes
from the moment a caseworker decides away a child and demands
whether to “substantiate” a case, through
initial removal, through continuing foster money to give the child back,
care. there’s a word for that
Opponents say, in effect, that if payment: Ransom.
caseworkers ever actually had to provide
real evidence that a parent did something
wrong before they took away the children,
then children might be left in unsafe homes. This legal ransom punishes innocent
But if the standard is not raised, even families, it punishes the taxpayers it is in-
more children will be subject to the uncon- tended to help, and, worst of all, it punishes
scionable trauma of needless foster care – children.
and some of them will be abused in foster The overwhelming majority of par-
care itself. Furthermore, the system will ents who lose children to the system have no
continue to be overwhelmed and that will money to spare. Often that’s why their chil-
lead to more children in real danger being dren are in foster care in the first place.
missed. Because the standard of proof in
In fact, even if the standard is raised, child welfare proceedings is so low, this
the impact may be limited. Some states provision inevitably punishes many innocent
already use a clear and convincing standard families.
– yet the rate of child removal in those states The purpose of foster care is to keep
appears to be no lower than others. In other the child safe. Everyone concedes it is
words, no matter what the law says, judges harmful to take a child from his or her par-
tend to apply a standard that boils down to ents and the longer the foster care the greater
almost no standard. the harm. If you make ransom a condition
The impact of raising the standard is of returning the child and the parents man-
likely to be symbolic – if it is raised with age to do everything else but still owe the
enough media attention it might cause at ransom, the foster care is prolonged even
least a temporary reduction in needless re- though the home is now safe. That is pun-
ishing the child for the alleged financial
DUE PROCESS AGENDA/13

failings of the parents. the child.”

For the same reason, ransom actually But that is a phrase filled with hu-
costs taxpayers more. For every extra day a bris. It says we are wise enough always to
child is held in foster care because the birth know what is best and capable always of
parents haven’t paid their “share” of the acting on what we know. In fact, those are
costs, the state has to foot the entire bill. dangerous assumptions that can lead us to
The birth parents wind up in a deeper and try to fix what isn’t broken or make worse
deeper hole and the state winds up paying what is.
more and more. More than forty years ago, three
Even if the birth parents scrape to- scholars, Albert Solnit, Joseph Goldstein,
gether the money to get their child back, the and Anna Freud, proposed an alternative
payments only make it harder to get out of phrase. They said “best interests of the
poverty. Poverty often creates stress that child” should be replaced with “least detri-
leads to actual child abuse, or poverty itself mental alternative.”26
is confused with neglect – so the ransom “Least detrimental alternative” is a
increases the chances of actual child abuse humble phrase. It recognizes that whenever
and/or having the child taken away again we intervene in family life we do harm.
because of poverty. Once again, you harm Sometimes we must intervene anyway, be-
the child – and cost the state more money. cause intervening is less harmful than not
RECOMMENDATION 16: In all intervening. But whenever we step in, harm
places where it appears, the phrase “best is done.
interests of the child” should be replaced The phrase “least detrimental alter-
with the phrase “least detrimental alter- native” is a constant reminder that we must
native.” always balance the harm that we may think a
Currently, almost all state laws in- family is doing against the harm of interven-
volving custody of children are liberally ing. It is exactly the shot of humility that
sprinkled with the phrase “best interests of every child welfare system needs.

NOTES:
1
All of the quotes in this section are from the Pittsburgh Post-Gazette series, “Open Justice,” by reporter Barbara White Stack.
(Sept. 23-25 2001).
2
Barbara White Stack, “Freedom to speak can lead to reform,” Pittsburgh Post-Gazette, Sept. 24, 2001.
3
Associated Press, Minnesota wire “Court orders child protection records opened to public,” Dec. 27, 2001.
4
Simply because more children are in their own homes than in foster care, in raw numbers, more children die in their own homes.
5
Arizona Revised statutes, 8-807,
6
Karen de Sa, “Dependent on same lawyers,” San Jose Mercury News, August 9, 2008.
7
Heath Foster, “Relying on good advice can reunite troubled families,” Seattle Post-Intelligencer, February 12, 2003, p.B1.
8
Mark Courtney, et. al., “Evaluation of the Impact of Enhanced Parental Legal Representation on the Timing of Permanency Out-
comes for Children in Foster Care,” Partners for Our Children Discussion Paper, Vol. 1, Issue 1, Feb. 2011.
9
Special Child Welfare Advisory Panel for New York City, Advisory Report on Frontline Practice (2000), p. 48.
10
Center for Family Representation, Bringing Innovative Legal Services to Scale: A Brief History of CFR's Community Advocacy
Teams: from Pilot to Promise (2010).
11
Ibid.
12
Kathleen Maher, Fiscal Brief: How Has Shift Away From Foster Care Affected Funding, Spending, Caseloads? (New York City In-
dependent Budget Office, October, 2011).
13
Center for Family Representation, note 8, supra.
14
William Adams, Neil Barone and Patrick Tooman, “The Dilemma of Anonymous Reporting in Child Protective Services,” Child
Welfare 61, no. 1, January, 1982, p.12. Yes, it’s an old study. We wish there were a newer one. But child welfare agencies almost
never ask questions to which they don’t really want to know the answers – and there’s no reason to think anonymous reporters have
gotten any more reliable in recent years.
15
Ibid.
16
18 F.3d 992 (2nd Cir. 1994). NCCPR’s Vice President served as counsel for plaintiffs in this case.
17
No. 97 C 4199, slip op. at 78-79 (N.D. Ill. March 30, 2001). A former NCCPR board member served as co-counsel for plaintiffs.
18
Supreme Court of Missouri, Johnson v. Missouri Dept. of Social Services, case # SC87360, March 13, 2007.
DUE PROCESS AGENDA/14

19
North Carolina Division of Social Services, Child Welfare Services, Change # 03-2016 Responsible Individuals List, December,
2016.
20
The only exception should be if the accused believes he or she is being harassed and wants time to ask a judge for permission to
see the record.
21
Colin Poitras, “Social Worker Distorted Case; Judge: Child's Removal Was Unnecessary” Hartford Courant, August 5, 2004.
22
Daniel Leddy, “Advocates are at times overzealous, even dishonest, in their zeal” Staten Island Advance, December 2, 2004.
23
Richard Wexler, “Lessons for Child Welfare From the California ‘Right to Lie’ Case,” Chronicle of Social Change, Oct. 18, 2016.
24
John Kelly, “9th Circuit’s Epic Dis of ‘Caseworker’s Right to Lie’ Case,” Chronicle of Social Change, Jan. 4, 2017.
25
Santosky v. Kramer, 455 U.S. 745 (1982). The lawyer who won this case now serves as President of NCCPR.
26
Joseph Goldstein, Anna Freud, Albert J. Solnit, Beyond the Best Interests of the Child, (New York: The Free Press, 1973), p.53.

The publication originally was funded by a grant from the Annie E. Casey Foundation. We
thank the Foundation for its support, but acknowledge that the views expressed in this
publication are those of NCCPR alone and do not necessarily reflect the opinions of our
funders.