Murderers, Rapists, and Terrorists have More Rights to Due Process of the Law than Parents Accused of Child Abuse

Commentary by Terri LaPoint: Health Impact News
It is clear that the effort to protect children from abuse has resulted in many non-abused children being taken away from innocent parents by Child Protective Services. Less than 16% of children are taken from their families for allegations of any kind of abuse (Source), and only 17% of allegations against parents are even substantiated (Source).

In the name of protecting some children, many more children are traumatized and abused by the very system tasked with protecting them. Medical kidnapping and state-sanctioned seizure of children is more common than most people have realized.

Yet parents whose children are taken find that they have less rights than criminals. The right to due process is conspicuously absent from almost all CPS cases. A legislator once told me that she does not care about the Constitutional rights of parents when it comes to child abuse allegations.

Is it possible to protect abused children while, at the same time, protect the integrity of families and the Constitutional or civil rights of parents?

Richard Wexler, the Executive Director of the National Coalition for Child Protection Reform (NCCPR), believes that it is. He writes that his organization:

    …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 accountability, and operates in secret. (Source.)

In a document entitled, “Civil Liberties without Exception: NCCPR’s Due Process Agenda for Children and Families,” Wexler compares child abuse laws to potential anti-terrorism laws.

If the rules that currently apply in family courts were to be applied in the context of terrorism, it is readily apparent that there would be an outcry to the violations of civil liberties created by the fictional proposed laws.

Yet, it happens every day to American families dealing with CPS.

He invites readers to consider what would happen if then-Attorney General Jeff Sessions had proposed legislation regarding terrorism 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 standard 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.

The reality is that this isn’t fictional at all – except that it doesn’t apply to alleged terrorists; it applies to families. These injustices are the experience of hundreds of thousands of parents all across the United States of America. Wexler says:

    …this hypothetical anti-terrorism law already is the law governing child welfare.

The article lists a number of recommendations that NCCPR has made since 2000 which, if applied, would go far to ensure that the system takes only children who are truly in need of state intervention.

If Constitutional principles and civil liberties were actually followed by all state actors, then children would not be terrorized by our own government taking them away from loving homes.
Transparency and Openness

Much of what happens with Child Protective Services is done in secret. Courts are often closed, and parents are threatened with unconstitutional gag orders if they try to talk about the seizure of their children.

While agencies cite “confidentiality” concerns to the public, bad actors are left free to trample civil liberties like due process, perjury is unchecked, and children are left to be abused in foster care or group homes, or even to be trafficked to pedophiles or pornography rings. Criminal actions are shrouded in a veil of secrecy.

NCCPR calls for the most basic of protections for the integrity of the process: transparency.

Social workers and Child Abuse Pediatricians currently hold almost unlimited power to tear a family apart with no more than their word. Richard Wexler says that:



 

    The power must be checked by accountability. Accountability is not possible in secret.

    Nor is accountability possible simply by hiring people with more expertise and assuming they will do the right thing. It’s not supposed to work that way in a democracy. That is why it is so urgent that all court hearings and almost all records in child welfare cases be presumed open.

Shelby-County_Alabama_Courthouse

Shelby County Judge Corey Moore tried to silence Journalist Terri LaPoint for reporting the medical kidnapping of a newborn from family – a family that has since been exonerated. See story.

Attorneys for the parents or the GAL for the child might be permitted to request that a case not be open to the public, but Wexler states:

    CPS should not even be allowed to ask for it. CPS has no interest in secrecy other than as a way to cover up its failings.

He points out that:

    The most traumatic cases are likely to involve not only child protection proceedings but criminal cases as well. These hearings already are public.

    Yet we have never seen nor heard a single account of a child saying that she or he was traumatized by the fact that such a trial was public. Nor do we know of any adult coming forward years after the fact to complain of such trauma.

There are some states that have opened up their CPS court cases to the public, and the results were positive. New York Judge Jonathan Lippman found that:

    “It has been 100 percent positive with no negatives … Our worst critics will say it was the best thing we ever did. Their fears were unfounded … I wish other states would do it.”

NCCPR recommends that records, as well as the courts, be open.

The public tends to only hear of the cases where a child was left in a situation that CPS should have taken them out of. These are the horror stories that drive ever more intrusive legislation and help non-profits to secure funding.

But they are not the vast majority of the cases. More often than not, children are removed from good homes, not left in bad ones. Due to the policies of closed records, the media and the public get the wrong idea, and demand action to stop the child abuse crisis.
Taking-Stanley-Children

The Stanley children were taken from innocent parents for false allegations, prompting Arkansas state lawmakers to investigate how to stop this kind of abuse by the state. See story.

If other agencies, legislators, and the media had open access to the records, a more accurate picture could be painted. In this context, CPS would be free to comment as well, instead of saying, “There is more to the story, but we can’t tell you, due to confidentiality laws.”

Our experience at Health Impact News has been that parents WANT people to see what is happening. Parents tend to be forthcoming about their warts and failures, because they aren’t trying to pretend that they are perfect parents. They just want people to see that they are loving parents, albeit imperfect, who didn’t hurt their children.
Good Legal Representation

Wexler recommends that:

    Quality legal representation must be available to all parents who must face CPS.

In the cases where the parents cannot afford an attorney:

    The institutional provider of counsel should have lawyers available 24-hours-a-day, seven-days-a-week, so that they can begin to work on a case from the moment a child is removed from the home instead of only at or after the first hearing – or even later – as usually is the case now.

In any given CPS case, the state has more money and more legal resources at their disposal than the parents, presenting a lop-sided pretense at justice. How can parents fight back against such a huge entity, especially if they were already struggling to make ends meet BEFORE CPS?
Connie Reguli 2017

Connie Reguli of Tennessee is a warrior attorney who fights for what is right for families. Photo from Family Forward Project Facebook page.

A judge in Washington state proposed a novel idea to help “level the playing field,” and it has worked well:

    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.

Along this line, I would like to propose a legislative mandate that, whenever an allegation by a Child Abuse Pediatrician is heard by a court, the court should be required to consider the testimony of any medical experts who disagree with the interpretation of the Child Abuse Pediatrician or who can attest to a medical condition that explains the child’s symptoms.

 
The state which pays for testimony against the parents should be required to provide a funding grant to the parents for medical experts who can provide exonerating testimony, in the interest of finding the truth as to whether or not the child was truly abused or simply has a medical condition.