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NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

May 9th, 2012 by Robert Franklin, Esq.
Now it’s Oklahoma’s turn to be criticized for  the secrecy of its child welfare agency when dealing with the deaths of children.  The Children’s Advocacy Institute at the University of San Diego Law School has released its ratings of states’ reporting on the actions of child welfare agencies.

A culture of secrecy in Oklahoma and many other states is hindering efforts to reduce child abuse deaths and serious injuries, according to a report by a national child advocacy organization.

“The death of an abused or neglected child is not only an unspeakable tragedy, it is also a red flag that something has gone terribly wrong with the child welfare system responsible for that child,” said Robert C. Fellmeth, executive director of the Children’s Advocacy Institute at the University of San Diego School of Law.

“Too often these cases are shrouded in secrecy and, as a result, literally fatal flaws in state systems go undetected and opportunities to fix them are missed,” Fellmeth said…

“The current undue emphasis on confidentiality only masks problems inherent in child protection systems,” the report said.

“Public exposure is a necessary step toward fixing these problems. Each year, millions of taxpayer dollars go to support child protective services investigations. Accordingly, the public has a right to know if the laws for the protection of children are being followed and its tax dollars well-spent.”

This is far from the first time we’ve seen this.  In California, Los Angeles County is currently refusing to turn over information to the state ombudsman appointed by the state legislature specifically to look into the county child welfare agency’s actions regarding some 70 children who died even though the agency knew them to be at risk.  In New York, Child Protective Services routinely ignores state law on reporting while diligently lobbying the legislature for more restrictions on what it can report.  Those efforts have met with failure, but still the agency refuses to report its actions regarding children’s deaths.  Arizona likely hews pretty close to the legal requirements for reporting, but those are so stringent that neither the public, the press nor public officials are permitted sufficient information to allow them to decide whether CPS is functioning in a way to give the best protection to children.

Oklahoma seems to fall into the same category as Arizona; it may not violate the law, but the law restricts the flow of vital information that would assist lawmakers in deciding how to improve matters.

Sheree Powell, spokeswoman for DHS, said federal and state laws limit what agency officials can do.

“DHS is governed by state and federal laws that require us to protect the privacy and confidentiality of the children and families we serve,” she said. “In communicating after the tragic event of child death, we release as much information about our agency’s involvement as is allowed by those laws.”

I’m glad that Oklahoma Department of Health Services complies with existing laws on reporting, but that scarcely solves the problem.  The fact is that in Oklahoma – as in many states, perhaps all of them, – the people of the state are prohibited by confidentiality laws from knowing what their child welfare agency is up to.  Since they don’t know what the agency is doing, they can’t know what it’s doing wrong, what it’s doing right, whether anything needs fixing and if so, what and how.

My belief is that secrecy invariably breeds error.  If child welfare workers and their management and supervisors know that they act behind a legal veil that shields them from public scrutiny, they’ll be more likely to make mistakes.  It’s human nature.  Caseworkers and indeed everyone in the chain of command know they answer only to the person above them.  That means they conform their behavior to the expectations of that person and not the wider world.  That invites mistakes; it encourages employees to do things the “company way” with no one else being allowed to know if that’s the best way.

I’ve argued the same about the secrecy imposed by British law on child custody proceedings.  Predictably, because the public can’t know what the judges are doing, they commit outrageous acts that look to many observers like serving mothers at the expense of fathers and children.  Just a few weeks ago, a study revealed that some 80% of the “experts” used by British family courts were entirely unqualified for the tasks set for them.  That’s a product of secrecy and, predictably, its result is incompetence.

The same is likely true in cases involving Child Protective Services.  Why wouldn’t it be?

The stated reason for secrecy both in CPS matters in the U.S. and in child custody cases in the U.K. is the welfare of children.  Presumably they’d be too traumatized by having the press report on their cases and so, in the interests of protecting children, their files are entirely closed to public view unless they end up dead.  Needless to say, that’s far more secrecy than necessary.  It’s true that children who are taken from their parents don’t want the fact bandied about in the press.  But if all cases were open to the public, only the tiniest fraction of cases would ever be reported by news media.  There are just too many of them.  And in any case, the names of children and parents, and other identifying information could be redacted to allow the important information to be revealed.  What we want to know is what the problem was and what CPS did about it if anything.  Who the parties were is far less important.

Currently, we’re only allowed to know about death cases.  That too has to change.  The worst abuses by CPS caseworkers often come not from doing too little but by doing too much.  Parents and mandatory reporters well know the enormous power wielded by CPS caseworkers.  Put simply, they can take your child any time for almost any reason.  And among those “reasons” is a parent’s standing up to a caseworker by, for example, demanding to see a warrant when the caseworker wants to enter the residence or by seeking the services of an attorney.

Curbing the overreaching of child welfare agencies will never be accomplished until we have a good idea of exactly what type of reports are made to them and how they’re handled.  By that I mean all types of reports, not just those in death cases which, thankfully, make up only a small percentage of CPS caseloads.

“My goal is to protect children,” [State Representative Jason Nelson] said. “We’re going to do what we think will protect children, and that is we’re going to have to be more open about these kinds of cases. Where that leads us, I don’t quite know yet, but we are committed to doing everything we can to open up more of these kinds of records and have more transparency.”

“Part of the reason we’re getting the reforms were getting today is because of the public disclosure that we’ve had,” he said. “There’s no interest in going backward.”

Good for him.  Let the sun shine in.

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