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August 4, 2014 by Robert Franklin, Esq.

The Attorney General of Vermont starts off scary, but moves on to be pretty rational and constructive. This editorial fills us in on his testimony before a legislative committee on the state of affairs in that state’s child welfare system (Valley News, 8/2/14).

As is so often the case, AG Bill Sorrell seized on a single tragic case in which the Department for Children and Families and local police failed a little girl who was killed by her mother’s boyfriend/husband. Sadly, those cases exist and sometimes we can place some of the fault with a child welfare agency that should have done a better job. Of course most of the fault lies with whoever’s brutal act of abuse or neglect took the life of a child, but we also ask child welfare workers to monitor known dangers and do something about them before tragedy strikes. Having done so, we can rightly assign some of the blame to those employees when it does.

But let’s remember that, as the Administration for Children and Families has demonstrated with its latest nationwide data, children in this country are remarkably safe. As I reported here, the ACF collected some 686,000 substantiated cases of abuse and/or neglect last year. That’s out of a population of over 73 million children under the age of 18. Local CPS agencies, whose data are aggregated every year by the ACF, fielded over 3 million reports of abuse and neglect, the overwhelming majority of which were found to be baseless and the majority of which didn’t even merit investigation. Out of all that, 1,640 children lost their lives due to abuse or neglect.

Needless to say, that’s 1,640 too many. But the fact remains that the chances a child was abused last year are under 0.2%. The chances of death are infinitesimal. Again, a single child abused is one too many; a single child killed is a tragedy. All agree on that.

But when the subject is children’s welfare, it’s a good idea to keep some perspective. I’ll say it again; the children of the United States are very safe and a lot of that has to do with the various state agencies that are charged with keeping them that way. 

So when Bill Sorrell tells a Vermont legislative committee that there’s a crisis in the state’s DCF because it admittedly failed a particular child, we rightly hear echoes of similar such claims, all of which lead to the expansion of the state into family life and parental decision-making.

“Our existing laws are clear in that the controlling determinant is to be ‘the best interests of the child,’ ” Sorrell told the Committee on Child Protection. “When in doubt, it is the child’s welfare that is to be pre-eminent. Despite this statu- tory obligation, on many occasions it appears that parental and/or other familial rights trump those of the child or children — and sometimes with horrifying results.”

Those are alarming words for a number of reasons. First, Sorrell assumes what so many do – that, in some way, the rights of children and the rights of parents or extended family members are in conflict. In all but the rarest of cases, they’re not. The facts are as clear as they can be; children generally are far safer with their two biological parents than they are with anyone else. It’s not apparent that Sorrell, in his enthusiasm for splitting children from parents, noticed the fact that, in the sole example he gave, it was not the child’s parent who was a danger to the child, but the mother’s boyfriend.

Second, parental rights never “trump those of the child.” Never. You’d think the top government lawyer in the state would know that basic fact, and I suspect he does. My guess is he’s making the claim, not because it’s true but because the claim supports his ultimate goal of further governmental intrusion into families.

Sorrell went on:

“The facts are abundantly clear in the recently released report of the investigation into the handling of the D.S. case conducted by the Vermont State Police. (The Department for Children and Families), law enforcement and the legal system failed her. Among other issues, there was inadequate investigation of the risks to D.S. presented by her mother’s boyfriend turned husband. Critical information within DCF was not shared between DCF personnel. Nor was this information provided to the deputy state’s attorney or the attorney who represented D.S. Neither the (deputy state’s attorney) nor the appointed attorney requested the DCF records. The judge making the ultimate decision to return D.S. to her mother was not the same judge who had prior knowledge of the case and who had earlier expressed concern about the effect of the mother’s criminal conviction on the reunification plan.”

Did Sorrell notice, as we do, that literally none of the specifics he offered for why little D.S. met such a tragic end have anything to do with parental rights “trumping” children’s rights? His lone example failed entirely to support his apparent desire for increased intervention by child welfare agencies into families.

His points are undoubtedly well taken. I’m all for communication of vital information about children at risk between legal guardians for children, judges, law enforcement, medical personnel, etc. But what any of that had to do with the mother or her boyfriend/husband escapes me. The simple truth is that the same thing could have happened if the child had been in foster care. All parties need to be informed of basic information. Agreed.

So in fact, D.S.’s death had little or nothing to do with Sorrell’s fantasy that, in some way, parent’s rights trump those of children.

Now, it is true that child welfare agencies are charged with keeping families together where possible. And that mandate, together with its twin obligation to keep children safe, can present caseworkers with some thorny issues. Being taken from home and parents is traumatic to children, but does that fact negate a truly dangerous situation with those parents? That of course can be a tough, tough call. As with all tough calls, sometimes the wrong one is made as it apparently was in D.S.’s case.

What’s interesting is not just the testimony Sorrell gave, but the testimony he didn’t give. Did he locate a tragedy in foster care and then tell the committee it warranted fewer children being taken from their parents? No, but if he’d wanted to, he could have. If Vermont is anything like all the other states, it’s got horror stories galore about abuse and neglect of children by foster parents and in group homes. After all, children there are at significantly greater risk than they are with even moderately abusive parents.

But of course Sorrell didn’t let on. To do so would be to encourage a lessening of governmental power over parents and children and he’s not about to do that.

Still, he did make one good point.

The attorney general made five recommendations for legislative action, only one of which seems likely to be controversial. But we think it is the most important one. He urged the committee to consider easing the confidentiality requirements that have inhibited communications at the investigation- and casework level among DCF, law enforcement personnel and community members. Moreover, he suggested that Family Court proceedings and related records dealing with child welfare and termination of parental rights cases, which are currently closed, be opened to the public and the press.

To that I can only say “Yes!” Time and again, in Arizona and California to take just two examples, the requirement that CPS doings be shielded from the press and therefore the public makes the agencies immune to oversight and therefore, to a great extent, criticism. Far worse, employees of the agencies know full well they operate in secret and that inevitably means they do a poorer job than if they worked in the public eye. In such a situation, it doesn’t take long before caseworkers come to understand that the only person they need to satisfy is their supervisor, and a culture of isolation takes root. Caseworkers talk to supervisors, supervisors talk to their managers, managers talk to their superiors, etc., but no one talks to the outside world. The result is inevitably self-justifying, self-policed and self-evaluated. When the outside world does manage to break in, often it’s to find a culture that only makes sense to itself.

Oversight by the press and the public inevitably serves the salutary function of bringing fresh eyes to an insular world. It’s not just a good idea, it’s a necessary one.

About that at least, Bill Sorrell was right. I hope the legislature heeds his call.

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