Unlawful Secrecy in Child Welfare

To the Editor:

Recent news coverage regarding licensed day care in the county revealed inadequate background checking of applicants seeking day care licenses. The licensing process goes through Cass County Social Services.

On the other side of the coin, there are serious problems with child protective services’ fact-finding processes—meaning CPS investigations. An example:
A father’s children were taken—and the father arrested—based on allegations of corporal punishment. The parents were told that spanking, with or without an object, is illegal in North Dakota (it’s not).

CPS records alleged daily beatings of one of the children using a belt.

In a way, it was lucky for the parent that he was arrested, because the criminal court became involved, and the truth came to light.

There were no “daily beatings.” The one child, grade school age, had been paddled twice in his entire life. The paddling incident that got CPS attention wasn’t over a “messy coloring paper,” it was after he shoved his 3-year-old brother.

The court could care less about other allegations in the abuse-neglect report, such as that the child had once lost TV privileges based on his report card and that the children weren’t allowed to go rummaging in the kitchen for snacks without parent supervision.

On the witness stand, the arresting officer even admitted spanking his own children. The father was fully exonerated by the judge and the jury.

Eventually—but this took months—the children went back to their parents. They resumed a life that includes love, structure, and nurturing the children’s potential. The father resumed a long-time family ritual: long walks,  juice boxes and prepared snacks for sustenance, with a visit to a park, museum, or sometimes a symphony concert.

But exoneration was not complete. The lawyer appointed to the parent did not represent him in child welfare proceedings, and the facts in the criminal trial didn’t make their way into those proceedings. At best, the child welfare record intones that with required counseling and parent training the family’s problems were resolved.

The child welfare record still alleges daily beatings and a family belief in ruling with an “iron fist.” It still alleges—falsely and with no other records to back up the allegation—that mom once fled her husband because of alleged domestic violence including choking attempts, and that she obtained a restraining order.

According to the mother, these claims were complete myth, apparently concocted by the officer who arrested her husband and took away her children.

When children are taken from their parents, the county prepares reports which become part of federal databases which identify individuals. Recently, the parents discovered that, according to the county’s reports, all their children had been “clinically diagnosed” as “emotionally disturbed,” terminology that, for federal purposes, means both a psychiatric diagnosis and a long history (at least a year) of severe impairment in daily functioning.

None of the children had ever had a psychiatric diagnosis, and none has such impairment. The child welfare file also includes a copy of a newspaper report detailing the arrest of the children’s uncle for alleged sexual misconduct. It does not contain the rest of the story—that charges were dropped when it turned out the alleged victim had fabricated her story and had made similar false accusations in the past.

This is information a CPS investigator will review if a future well-intentioned citizen or mandated reporter reports any suspicion involving any of these children or any children the family might have in the future. The investigator will see “iron fist,” “domestic violence,” “choking,” “daily beatings,” “arrested and taken to jail,” “emotionally disturbed.” If you were the future investigator, would those words affect you?

This story is dramatic but not unusual. It helped that the father received excellent legal representation in criminal court. Many parents are never charged. They may have legal counsel (usually court-appointed) in child welfare proceedings.

However, CPS investigations are much broader than criminal investigations. They contain overwhelmingly large amounts of fact mixed with speculation and hearsay—often recorded as “it is reported that” or “collateral sources have said” from unidentified sources.

One parent was “reported to be schizophrenic” based on an error in her child’s medical record.

A parent was reported in subsequent case logs to be “drinking again and not taking her Paxil” because she had the same name as a clinic patient with an alcohol problem who was prescribed the drug. This parent did not drink and had never been prescribed Paxil.

Official records are not compared with other official records for accuracy. One example is allegations involving educational neglect. School attendance records are often inaccurate. Doctor’s excuses or parent explanation for an excused absence may be overlooked, or a child may be recorded as absent in spite of other records—such as schoolwork done in class and graded by the teacher on days in question—showing the child was in class.

Establishing the truth in child welfare records is all but impossible. Federal law does require states to enact laws safeguarding the identity of an individual who reports suspected child abuse or neglect. That identity may be revealed if the case goes to trial, but not necessarily.

In 2007, ND DHS asked the North Dakota legislature to extend the policy to collateral (secondary) sources who provide information to CPS investigators. The rationale was that additional sources might not want to give information if they think they might have to go to court. The only written record of legislative testimony is DHS’ own testimony asking for the bill.

A member of the Judiciary Committee that recommended passage (the bill was passed) does not recall any committee discussion or other testimony.

Social services agencies go much farther than even this law requires. The law pertains to investigations, not to casework once an investigation is complete.

Children are routinely removed before the evidence is heard, and going to trial can take months. Meanwhile, parents are routinely denied access to medical, educational, and other records of their children before, during, and after legal proceedings.

Some parents believe that the federal Privacy Act does and should apply to these records. The Privacy Act is supposed to guarantee access to what the federal government says about you and an opportunity to correct mistakes in the record.

The Privacy Act does apply to local and state government agencies carrying out federal matching programs—“matching” means that local records are matched to federal records based on the person’s identity.

Child welfare funding, which in North Dakota is primarily federally-funded, relies on programs that apparently come under this definition. Yet local and state agencies continue to ignore parents who simply want to know what is recorded about them and their children, and to correct what is false.

Parents who demand accountability from government agencies—or from the private agencies, such as private foster care agencies, the government does business with—are especially likely to see the doors slammed shut. Their only option is to hire legal counsel and pursue resolution through civil courts—an insurmountable barrier for most parents.

We all want to make sure that children are well-cared for. The culture of secrecy in child welfare does nothing to ensure this and subjects families to the worst aspects of government secrecy.

As a remedy for this and other problems in child welfare, some states have acted. Arizona has moved child protection investigation to law enforcement agencies. Utah established a central agency for parent defense. Washington State initiated a pilot project in which court-appointed parent attorneys have access to their own social workers, not just those who represent the prosecution. Many states, including Minnesota, have opened their child welfare court systems. Maine reforms included allowing parents to seek review of old cases.

I am in regular contact with parents in Cass County, Rugby, and Williston who want to see changes in social services.

The specific examples of inaccurate records come from local parents, including myself, who are willing to speak publicly and/or share official records they have obtained.

Two of us have been seeking meetings with the state’s attorney, Birch Burdick, to address these problems. Although we have had initial meetings and subsequently submitted records to Burdick’s office at his request, we have waited months for him to schedule agreed follow up meetings in spite of repeated reminders.

With the exception of confidential information in the records we have submitted—that information would have to be redacted—the files provided to the state’s attorney’s office might be considered open records.

-Sheri McMahon
Fargo