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January 2nd, 2012 by Robert Franklin, Esq.
Few would argue that child welfare agencies nationwide are without flaws.  Not a day goes by that there isn’t an article and usually several articles detailing yet another failure of such an agency.  Most of the stories involve failure to protect children who are at risk of neglect or injury, but some read more like 1984

In those, caseworkers commit the most outrageous acts of bureaucratic overreaching for the sake of taking children from perfectly fit parents.    A Canadian boy is snatched by Oregon authorities for trespassing in an office park and bicycling without a helmet.  It takes two years for his perfectly fit parents to get him back.  A Detroit mother sees the police appear at her door with an ineffective warrant obtained without a hint of due process and take her daughter.  What was Mom’s crime?  She refused to give the girl psychotropic medication that mental health professionals also refused to give her once she was out of her mother’s care.

I could go on indefinitely.

Knowledgeable critics of CPS say that many of the children they take into foster care would be better served if their parents were offered training in the specific areas in which they’re deficient.  For example, parents short on money and skills, when confronted with a physically or mentally impaired child, may need nothing more than training by a professional in how to address the child’s needs.  Too often, case workers seem to see such situations as black or white – either take the child into care or leave it with the parents who don’t have the skills to adequately care for the child.

But how to fix CPS is first and foremost a matter of finding out what caseworkers do or don’t do in individual cases.  And that turns out to be a problem, at least in California.  Confidentiality statutes are often used by CPS to refuse to disclose what happened in cases of child abuse, neglect or death.

This article details some of the problems the Sacramento Bee had in finding out basic information about cases of injury to children (Sacramento Bee, 12/26/11).  That’s despite the fact that, in cases resulting in a child’s death, the information is a matter of public record according to state law.  Put another way, the law requires CPS to disclose their records, but they often refuse. 

We’ve seen the disgraceful case of Los Angeles County that, to this day, has refused to provide information required by law to be disclosed to a state auditor, empowered by the state legislature to obtain the information.  Apparently, Los Angeles isn’t the only county to balk at complying with the law when it comes to CPS records.

Los Angeles County has refused to comply with requests made under the law by the California State Auditor and the Los Angeles Times. The newspaper recently sued the county over the issue, while the auditor was forced to leave the county out of a recent report on CPS agencies.

Two years ago, the National Youth Law Center asked 12 counties to provide basic records required under the law. Several counties replied promptly, but others required repeated requests and Riverside County refused to comply at all, the center said.

In other cases, CPS has produced records, but incomplete ones, making it impossible for educated professionals to evaluate caseworkers’ conduct.  Two such cases are those of Giovanni and Yeinira Melchor, both of whom died due to the neglect of their parents.  Four other children were belatedly taken from the parents who were deported to Mexico following Yeinira’s death.  Read about it here (Sacramento Bee, 12/26/11).

Although the Bee has managed to obtain some of the records in the case, it’s still impossible to ascertain why a caseworker returned Yeinira to her parents after her brother Giovanni had drowned at age one due to his mother’s neglect.  Ample documentation revealed parents who were illiterate in Spanish, couldn’t speak English, were very poor and utterly incapable of caring for Yeinira who had several physical impairments requiring special training and attention.

So why was she returned to her parent’s care?  It’s anyone’s guess because the county CPS has refused to turn over all the records in the case.

County officials say they cannot discuss the case or the records because of confidentiality laws.

But without documentation, evaluating the agency’s actions is difficult, said Ed Howard, senior counsel at the Children’s Advocacy Institute in San Diego, who reviewed Yeinira’s file at the request of The Bee.

“If we take them at face value – that there is no documentation for reuniting this child with a very troubled family – then this is a fiasco,” Howard said. “You can’t do this job without documenting your reasons for making such a decision.”

Specifically, CPS records for Yeinira do not show whether the agency conducted an assessment about the risk of returning her to the home – using what’s called the Structured Decision Making tool – in violation of its own policies.

“In all of its reports, the (CPS) Oversight Committee has recommended comprehensive and consistent use of the tool,” said Gina Roberson, co-chair of the committee. “It means social workers are using the best practices in trying to prevent child abuse.”

The CPS Oversight Committee, echoing the complaints of experts and child welfare advocates, has repeatedly found the agency’s social workers have made questionable decisions and serious errors in high-risk cases such as the Melchor’s. That assessment was repeated in other reports this year, including one by the California State Auditor.

In California as in Arizona and doubtless elsewhere, CPS, sometimes in violation of state law, hides behind a veil of secrecy, refusing to disclose what it did or failed to do in individual cases.  Until that veil of secrecy is removed, child welfare agencies will remain unanswerable to the public who pays their salaries.  They will remain unanswerable to state legislatures, the police, everyone.

The great irony of course is that confidentiality laws were often enacted to protect children from unwanted and often hurtful publicity.  We see this in various ways in the United States and all parts of the English-speaking world.  Time and again, in child welfare cases, but also in divorce cases, adoption cases and others, confidentiality creates a secret room in which children are abused by the very authorities who are supposed to protect them.

No amount of transparency will save all children from harm, nor will it make child welfare agencies into models of bureaucratic perfection.  But without transparency, those seeking to improve a situation that no one argues is acceptable will remain hamstrung.  It is past time for CPS decisions to see the light of day.

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