A report from the National Coalition for Child Protection Reform

By Richard Wexler, NCCPR Executive Director

January 20, 2020

The problem with a Spotlight is that it illuminates a very 

small area, but leaves everything else in the dark.

A PRINTABLE PDF VERSION OF THIS REPORT IS AVAILABLE HERE.

KEY POINTS:

● Though reported with the best of intentions, stories written by two Boston Globe “Spotlight Fellows” and published by the Globe and ProPublica are likely to endanger the children they are meant to help.

The stories will encourage public policy that

          --Promotes foster-care panic, sharp sudden increases in removals of children from their homes that do terrible harm to children needlessly removed and overwhelm caseworkers so they have less time to find children in real danger.

          --Discourages women, particularly poor women and women of color, from seeking prenatal care or giving birth in hospitals, increasing the risk to their newborns.

          --Opens even wider the spigot of the “foster-care-to-prison pipeline” which leads to disastrous outcomes for children.  At the end of 2019, in fact, at almost the same time the Spotlight Fellows stories were released, this was documented brilliantly by the Kansas City Star.

● More than four decades of experience tracking child welfare – and the journalism of child welfare – make clear that the failure to provide context and diverse points of view concerning how to solve the problems the series exposed leads to such panics by workers, judges and child welfare agency leaders, all of whom fear being in the spotlight if they leave a child home and something goes wrong. 

● The reporters misunderstood the history and the politics of the law at the center of their stories, the Child Abuse Prevention and Treatment Act. They made erroneous assumptions about key provisions of the law.

● There is far less consensus about CAPTA than is implied by the stories, in which only sources who reinforce the “master narrative” of the reporters are quoted.  That narrative suggests that CAPTA is fundamentally a good law that needs to be clarified, toughened and given more funding.  There is a vigorous debate among child welfare experts over this, with many believing CAPTA is a fundamentally bad law that harms children and should not be encouraged with more funding. But those viewpoints were entirely shut out of the stories, leaving readers in the dark.

● This was caused, in part, by a startling dichotomy in sourcing. Child welfare is a system that overwhelmingly polices the poor and, disproportionately the nonwhite.  But every national expert quoted is white. 

To understand how harmful this is, consider: In poor communities and communities of color, child protective services agencies are viewed, for good reason, in much the same way as the police.  It is inconceivable that a major series of any kind about the criminal justice system would leave out the voices of all national experts who are not white. It should be equally inconceivable when the topic is child welfare.

● The journalists’ view of CAPTA is seen most clearly in the series’ de facto endorsement of one of CAPTA’s worst provisions, the “plan of safe care” provision, which ratchets up surveillance of pregnant women and infants “affected” by parental substance use.  There is no evidence base for this provision – no research indicating it makes children safer.  What research does exists suggests that this sort of approach makes children less safe – by driving their mothers away from prenatal care and away from giving birth in hospitals.

● The stories show a fundamental misunderstanding of who winds up in the child welfare system and why, including a misunderstanding of crucial data about “substantiated” child abuse and neglect reports.

● Even as she was working on these stories, one of the reporters did pro-bono work for an advocacy group that takes strong stands on these same issues. That is a conflict of interest.

● None of this means everything about the stories was wrong. The reporters are right to highlight the need for a standard national definition for child abuse fatalities and near fatalities.  They also are right to call for far more public disclosure concerning such fatalities. In fact, they don’t go far enough. NCCPR is on record calling for much more transparency: a strong rebuttable presumption of openness for all court hearings and almost all records in all child abuse and neglect cases. 

● Contrary to what reporters who are called out for these sorts of failings often say, none of this means that child abuse deaths should be ignored.  No, it does not mean that, as sometimes has been alleged over the years, “you don’t want us to report it when children die!”  On the contrary, we need more coverage of such fatalities - coverage that gets at the real causes and real solutions.  At least one newspaper, the Dayton Daily News has done that.  And we need more stories about the consequences of getting the solutions wrong – which, as noted above, the Kansas City Star did  at almost exactly the same time as the Spotlight Fellows’ stories were published. 

● The Spotlight Fellows had the chance to advance the debate over how to reduce child abuse fatalities, a debate that has been going nowhere for decades. Instead, they offered only more of the same.  Perhaps others will do better.  Because the solution to the problems of journalism is more journalism.

Introduction

            Every once in awhile the leader of a large child welfare system becomes profoundly hostile to families. Some actually start out that way. But the leaders we have in mind are the ones who start out as reformers, with a clear understanding of how much the intrusiveness of the systems they run and a knee-jerk take-the-child-and-run approach to child welfare harm the children they are meant to help.  But by the end of their tenure they’ve embraced that very approach.

            We don’t claim to know why it happens, but we have a theory: Particularly in very large systems, a disproportionate amount of an agency leader’s time is spent on the worst cases – those cases in which children “known to the system” die.  Hour after hour is spent poring over the very worst that one human being can do to another.  Eventually it must blot out everything else.

            So even leaders who know in their heads that embracing ever more surveillance of families and removal of children will do enormous harm to those children are too overwhelmed by visceral revulsion to listen to anything else.

            But imagine how much harder it is to see context and understand the implications of policy choices if you’ve spent much of four years reading the horrifying details of seven thousand child abuse deaths.  Two dedicated journalists, Emily Palmer of The New York Times and Jessica Huseman of ProPublica, did just that in order to produce stories about child abuse fatalities that were published on December 13, 2019 in ProPublica and the Boston Globe. For part of the time, Huseman and Palmer were “Spotlight Fellows,” funded by a fellowship created by the producers of the film of the same name. The project was edited by the leader of the Globe Spotlight team when the project began, Scott Allen. 

            To get these stories, the reporters immersed themselves in a tsunami of depravity, grotesquery, torture, tragedy and death.  But context, perspective and all dissent from the reporters’ “master narrative” was washed away by that tsunami.  For that reason, all that tragedy is likely to be compounded by another: The Spotlight Fellows’ attempt to make the system better almost certainly will make it worse.

           

As is almost always the case when the journalism of child welfare fails, this massive project was not undertaken to “sell newspapers” or generate pageviews. It was undertaken for the most noble of reasons – to save lives. It won’t.  In fact, it is more likely to trigger responses that, directly and indirectly, will increase child abuse deaths.

            We know this because, though the Globe / ProPublica stories amass more data than anything like it that’s gone before, the project is one more example of what is probably the most common genre in child welfare journalism: “the fatality series” – the one in which the reporters ask how children were “allowed to die.”

            The modern “template” for this kind of series was created, almost by accident, by the Chicago Tribune in its coverage of the death of Joseph Wallace in 1993. Those stories made the Illinois child welfare system, in the words of one of the state’s foremost child advocates, “unquestionably worse.”  The template was given a 21^st Century update in the Miami Herald series “Innocents Lost.” That series brought a halt to reforms that had been found by independent evaluators to make Florida children safer.  At best, child abuse deaths did not decline; they may have increased. And the entire Florida system was made worse. There have been many other nearly identical series.   All of them led to changes – usually some combination of new laws, new policies, more spending and caseworker hiring binges – but none has demonstrated that it actually made children safer.

            That’s because all of these series suffered from the same failings: an unwillingness by the journalists to question their own initial assumptions, a seeking out of sources who would confirm the master narrative, a refusal to consider dissent, and sometimes an unacknowledged implicit racial and class bias, even among people who see themselves as champions of equality.

            It’s asking a lot to expect otherwise. After spending month after month reading about children subjected, in some cases, to mind-boggling torture, who would want to listen to anyone saying “Yes, but…” or “Have you also considered….”?  Probably no one.  (In this case, we tried. It didn’t go well.)  But for a journalist, it’s supposed to be part of the job.

            Palmer and Huseman didn’t do that part of the job.  Now they are celebrating the culmination of years of hard work.  But, say, five years from now, when policies have changed, laws have been amended, and a slew of reporters have done the same stories in the same way at the state and local level using the database compiled by the Spotlight Fellows, children will be dying at the same rate, or worse, and foster-care panics will have increased the number of children traumatized by needless foster care.  What will there be to celebrate then?

The false premise at the heart of the stories

            Since these stories are national in scope, they are built around a federal law, the Child Abuse Prevention and Treatment Act, first passed in 1974.  The fundamental premise of the series is that CAPTA is mostly a good law, it’s primary failings are that it is not strong enough, not specific enough, not enforced enough and not funded enough.  The series goes to enormous lengths to document that states are not following CAPTA, and suggests that, as a result, children are dying.

            But what if CAPTA is, in fact, a bad law – a law conceived to pander to politics not follow science, a law with almost no underlying “evidence base,” a law that has misdirected efforts to curb child abuse and a law that has, inadvertently, contributed to child abuse deaths, and much other suffering?

            Or what if CAPTA is a mixed bag, with some provisions that could be helpful and others that do great harm?

            For reasons discussed in this analysis, our own view is Option 3; with the law doing considerably more harm than good.  This view is shared by a wide variety of people with every bit as much expertise as (and a lot more racial diversity than) the limited number of national authorities quoted in the stories. That doesn’t make them right and the authorities’ the Spotlight Fellows quoted wrong. But it does mean that readers are entitled to hear those well-informed, evidence-based perspectives and make up their own minds. Palmer and Huseman denied readers that opportunity.

            The problem with a spotlight is that it illuminates a small area, but leaves everything else in the dark.

The unbearable whiteness of sourcing

            Imagine doing a major story about the criminal justice system and presenting to readers only “experts” who are prosecutors, police officers, and judges. Now imagine that every one of those experts is white.

            In 2019, that is inconceivable when covering criminal justice.  But in poor communities and communities of color, child protective services agencies are seen as a police force and they are regarded with the same suspicion as the police.  Indeed, Dorothy Roberts, the George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights at the University of Pennsylvania School of Law  has written in her landmark book, Shattered Bonds: The Color of Child Welfare, that CPS agencies have not just devastated impoverished families, they undermine entire communities of color in the same way as mass incarceration.

One recent study found that more than half of all African-American children will be subjects of child abuse investigations (compared to 28 percent of white children). Black families are more likely to be reported, more likely to have the reports “substantiated” more likely to be placed in foster care and on and on.  There is overwhelming evidence that racial bias is a key factor in these disparities.

            And yet, in these stories every national “expert” quoted is white. 

            In an email to NCCPR on February 6, 2018, Palmer wrote that she and the others on “our team are making great efforts to speak to people from all viewpoints.”  But only national “experts” who supported the reporters’ thesis were quoted.  And all of them are white.

Some sources of color the Spotlight Fellows left out

Among the experts for whom the Spotlight Fellows had no room in their stories:

● Prof. Dorothy Roberts, George A. Weiss University Professor of Law and Sociology and Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights at the University of Pennsylvania School of Law. Prof Roberts’ books include, Shattered Bonds: The Color of Child Welfare, (Basic Civitas Books, 2002) in which she criticizes CAPTA. (Prof. Roberts also is a member of NCCPR’s volunteer Board of Directors.)

● Judge Patricia Martin, presiding judge of the Child Protection Division of the Circuit Court of Cook County (metropolitan Chicago), Illinois. She is a former president of the National Council of Juvenile and Family Court Judges.  Judge Martin was a member of the federal Commission to Eliminate Child Abuse and Neglect Fatalities.  She wrote a scathing dissent from the Commission’s report.  While Judge Martin was ignored, two white members of the same commission were quoted.

● Lisa Sangoi, an attorney, Soros Justice Fellow and co-founder of the Movement for Family Power.  She is working on a massive study of the very issue at the heart of these stories: the intersection of substance use and child welfare.

● Prof. Vivek Sankaran of the University of Michigan Law School. Prof. Sankaran  directs the law school’s Child Advocacy Law Clinic and its Child Welfare Appellate Clinic. The stories ignored Prof. Sankaran. One story did, however, quote a white colleague at the same law school who has views supportive of the reporters’ thesis.

            The nature of our conversations with the reporters and what we’d heard from others in child welfare led us to suspect something like this would happen long before the stories were published.  That’s why, on June 25, 2018, we sent a memo Scott Allen, the Boston Globe editor overseeing the project, that included an entire section on sources. Here is that section:

There are a great many highly credible sources who disagree with the individuals and groups to which the reporters seem to have done most of their outreach.  I have suggested some of the most distinguished authors and scholars in the field, people such as my board member Prof. Dorothy Roberts of the University of Pennsylvania Law School and author of the definitive book on child welfare and race, and Lisa Sangoi, a Soros Justice Fellow specializing in the issue of the intersection of child welfare and substance abuse.

            I’ve suggested many others, … I’ve urged the reporters to reach out.  Occasionally, and for limited purposes, they have. By and large they have not.

            In contrast, the reporters have reached out to those I view as most extreme in calling for more intervention into families and more removal of children, and used documents and reports that also reflect this point of view.  My point is not that they should be left out of the discussion but that those who disagree should be brought into it.

The spectrum of acceptable viewpoints, for Ms. Palmer and Ms. Huseman … appears largely limited to those who view families in the system as evil versus those who view them as sick.  The full spectrum of informed opinion is far wider.

So, for example, advocates of the “plan of safe care” rule will say: We don’t want to automatically take away these children, we just want them checked and overseen.  But the people I have recommended, and who the reporters seem to have ignored, believe “plan of safe care” has devolved into take-the-child-at-birth and therefore expanding the requirement is harmful.  They believe that the judgment on whether to call in child protective services is best left to medical professionals, case-by-case. That perspective appears to be absent.

Similarly, among parents caught up in the system and among children who are in it or have been through it the range of opinion and experience are enormous.  Will there be room in your series for perspectives like those in the two articles I sent to the reporters in my most recent emails. This one, written by a mother and this one, by a social worker who was, herself, a foster child. Will there be room for families like those profiled in The New York Times story about foster care as the new “Jane Crow.”

            Now we know: The answer is no.

            We also made an offer:

I would be glad to send you a list of people and organizations I think you would agree are vital to any discussion of child welfare policy and practice, which you can compare to those the reporters have contacted.

            Allen sent a brief, polite response. He did the same at other times over the course of the project.  But he did not take us up on the offer.

How could the reporters omit scholars such as Dorothy Roberts? In her book Prof. Roberts argues that CAPTA contributed to a sharp rise in the needless removal of children. She writes that, in part because of CAPTA, “What was understood by some advocates as a social problem rooted in poverty and other social inequities became widely interpreted as a symptom of individual parents’ mental depravity.”

            Was there really no room for even one expert of color? 

A “leading child welfare expert” with a poor track record on race

            Even among the white experts, some of the choices are deeply disturbing.  The very  first “expert” quoted is Michael Petit.  He is described simply as a “leading child welfare expert.”  It is not clear who awards this credential.  But Petit told a Congressional committee that, when it comes to protecting children from abuse, “the states that do the best overall are the ones that have smaller, whiter populations” [emphasis added].

When serving on a national commission on child abuse fatalities he patronized one of the commission’s African-American members, Judge Patricia Martin. Martin is presiding judge of the Child Protection Division of the Circuit Court of Cook County (metropolitan Chicago), Illinois. She is a former president of the National Council of Juvenile and Family Court Judges.  Judge Martin ultimately wrote a scathing dissent from the commission’s report. She is another of the sources of color we recommended to the Spotlight Fellows.  She is not quoted or cited.

            Another of the Spotlight Fellows’ preferred experts is Emily Putnam-Hornstein – co-developer of a “predictive analytics” algorithm that harvests the data of poor people in Allegheny County, (metropolitan Pittsburgh) Pa., without their informed consent, and uses it to assign a “risk score” to children whose parents are subjects of reports alleging child abuse or neglect.

            Prof. Virginia Eubanks devotes an entire chapter of her book Automating Inequality to discussing the harm of Putnam-Hornstein’s Pittsburgh work.  She calls it “poverty profiling.”  In the Harvard Law Review, Prof. Roberts expands on that critique to discuss racial bias.  But in the latest version of the algorithm, Putnam-Hornstein and her collaborators are going further – trying to pin a “risk score” on every child in the county – at birth. 

            These sorts of algorithms also are used in criminal justice. To its great credit, one of the first news organizations to raise concerns about racial bias in these algorithms was ProPublica. So it’s surprising that no one there appears to have raised any concerns about relying on the nation’s foremost proponent of the same sort of algorithms in child welfare.

            Still another of the white “experts,” Prof. Frank Vandervort of the University of Michigan Law School is among the most extreme proponents of what we call the Big Lie of American child welfare: the false claim that children are dying because of a fanatical determination to keep them with horrible parents.  Had the Spotlight Fellows spoken to Prof. Vandervort’s faculty colleague, Prof. Vivek Sankaran, who directs the university’s Child Advocacy Law Clinic, they would have heard the opposite – and gotten a very different perspective on CAPTA.

            How are Petit, Putnam-Hornstein and Vandervort all deemed acceptable experts, while no one of color makes the grade?

            One clue may be found in an email from Emily Palmer. After we raised a number of issues, including racial bias, Palmer wrote that she and Huseman were aware of “issues with over-representation in child welfare of certain groups and under-representation in others” [emphasis added].

            Unlike almost every other professional field, which at least acknowledges the existence of racial bias within it, there are a substantial number of child welfare professionals who actually claim their field is immune from such bias.  A standard trope of those in child welfare who deny racial bias is the claim that disparities are due solely to the fact that white children are underrepresented – that is, there is a vast underground of white child abusers missed by authorities.

            In fact the evidence is overwhelming that families of color are overincluded.

            It isn’t just experts of color who were excluded from the stories. On May 29, 2018 we sent this email to Palmer and Huseman:

            As you may know, Teen Vogue has been running a series, “Fostered or Forgotten” written largely by former foster youth.

The entire series to date is here: http://bit.ly/2xo2xOC But to me, the most notable story so far is from a woman whose parents were heroin addicts. She writes about why she would have been vastly better off had she been allowed to stay with them: http://bit.ly/2snzrsT

So as you prepare to write about states not complying with the “plan of safe care” provision of CAPTA, consider that what this young woman got *was* in effect, a plan of safe care, albeit at age 14 – and it nearly ruined her life. Consider that the people who resist this requirement often know that “plan of safe care” is a euphemism for take-the-child-and-run and, in many cases, that just makes things worse for the children. …

            They showed no interest.

It would be, in itself, an act of stereotyping to presume that every expert of color shares the view of those we have mentioned. Some, no doubt, would applaud the Spotlight Fellows stories. But seeking out diverse points of view, and sharing informed points of view from all sides, is fundamental to good journalism. And diversity in viewpoint is more likely when you seek out people of diverse backgrounds.

A sanitized view of CAPTA

            Understanding the origins of CAPTA is crucial to understanding the law’s failure.  But Palmer and Huseman offer only a sanitized view of those origins, citing only the sponsor of the original bill, Sen. Walter Mondale. In this version, the biggest problem with CAPTA was that it was underfunded, but minimal funding was the only way to get it signed by President Richard Nixon.

            In reality, getting Nixon’s approval required much more.  It required ignoring everything we knew, even then, about child abuse and how to deal with it.  As we wrote in a column for the trade journal Youth Today:

Back in 1971, President Richard Nixon vetoed a bill called the Comprehensive Child Development Act. It would have aided low-income families by providing an array of services including developmental day care. The lesson for Democrats was clear: Whatever you do, don’t connect what you want to poverty. And so was born the Child Abuse Prevention and Treatment Act. As its sponsor, Sen. Walter Mondale, put it: “Not even Richard Nixon is in favor of child abuse!”

But to get the bill passed, everyone had to pretend that child abuse has nothing to do with poverty. As professor Barbara Nelson writes in her landmark history of CAPTA, Making an Issue of Child Abuse, the bill fits the quintessential American view of all social problems. That is: They are “individually rooted, described as an illness, and solvable by occasional doses of therapeutic intervention.” That’s why parents whose children are taken because they lack child care or housing are almost always given — no, not child care or housing — a psychiatric evaluation. That’s why we persist in treating child abuse as a “public health” problem when it’s really a social justice problem.

We know that no issue is more important to dealing with child abuse than poverty. Poverty itself is routinely confused with “neglect,” and poverty exacerbates all the stress that can lead to actual abuse. But Mondale knew what he had to do to get CAPTA passed. “This is not a poverty problem,” he declared. “This is a national problem.”

           

CAPTA was built around surveillance and policing – even though the overwhelming majority of cases involve the confusion of poverty with neglect and require neither.  But Huseman and Palmer’s stories emphasize a supposed need for tougher enforcement of surveillance and policing. And, as is discussed later, in their misuse of a basic statistic, they contribute to the confusion of poverty with neglect.

            Twice, we asked Huseman and Palmer if they had read Prof. Barbara Nelson’s history of CAPTA discussed in the column. They never replied.

           

Where the reporters stand

After surveying the states concerning their compliance with CAPTA and finding that none complies with every provision and most are seriously out of compliance, they write:

State responses to the survey suggest that many treat strict compliance with the federal law as optional … As a result, vulnerable children across the country are left in the lurch.

            Elsewhere they refer to a House bill to increase CAPTA funding as

            A modest but important step forward in promoting compliance with the law.

            At another point they write:

For many advocates, however, CAPTA has become a cruel joke — and not just because Congress provides so little money to fund it. In addition, they say, many mandates are too vague to be enforced, making them little more than political aspirations.

            In a Tweet, Palmer declares that CAPTA “has never been adequately funded.”

CAPTA at its worst

According to a June 22, 2018 email sent to NCCPR by Huseman, the series originally was to include seven stories, with individual stories focusing on different  provisions of CAPTA.  In the end, the predominant focus was on just one – a provision one of the stories promotes relentlessly but which is, in fact, one of the worst parts of the law: “Plan of Safe Care.”

This is the focus of a story with a lurid headline that harkens back to the worst examples of  1980s “crack baby journalism” – the kind of journalism condemned in a landmark New York Times editorial page series, including one of the editorials that won Brent Staples the 2019 Pulitzer Prize for editorial writing. The ProPublica headline: “The Law Says She Should Have Been Protected From Birth. Instead, She Was Left in the Care of Her Drug-Addicted Mother, Who Killed Her.”

The story is built around a horror story case in which a child was sent home to a parent despite flagrant evidence of danger.  In fact, the “plan of safe care” provision probably would have had no effect in this case, because the child was left in danger long after child protective services was made aware of the situation via repeated reports alleging abuse and neglect in the home.

The horror story has the effect of papering over the fact that there is no actual evidence that the “plan of safe care” provision makes children safer – and what little research exists suggests the opposite.

To truly illuminate the issue for readers, Huseman and Palmer could have told two stories: The one they chose and the story of a family harassed and a child needlessly traumatized when confiscated from her mother’s arms days after birth because the mother smoked marijuana. Or the case of the infant taken the same way because her mother drank marijuana tea to ease the pain of labor. Had they spoken to, and quoted, family defense attorneys they could have given readers a sense of how common this is.

The kinds of stories the Spotlight Fellows left out

Emma Ketteringham is managing director of the family defense practice at the Bronx Defenders.  This is the start of an oped column she wrote for the New York Daily News:

I have two folders on my desk. One has articles with titles like “Pot-smoking Mamas” and “Pot for Parents,” espousing the use of marijuana by parents. These commentaries — all by parents from well-heeled backgrounds — share a carefree tone, portraying marijuana use as an upscale diversion that relieves stress, is healthier than drinking, and leads to patience and creative parenting.

The other folder — a thicker one — is full of petitions against parents in the Bronx charging them with child neglect, wholly or in part, for their past and present marijuana use. These petitions are all against black and brown parents who are low-income and who live with the terrifying risk of losing their children — for the same marijuana use that the other more well-to-do parents blithely extol. …

Or they could have told the story of a mother successfully in recovery from opioid addiction through medication-assisted treatment whose child was taken – because of the very medication the mother had been prescribed.

Both kinds of stories reflect serious and real problems in child welfare. Surely to evaluate a federal law like CAPTA readers should know about both, and know what the research suggests.

On the surface, “plan of safe care,” that seems like common sense, and supposedly it’s not even intended to be punitive. So how could it backfire?

In our column for Youth Today, we discuss the “plan of safe care story” that the Spotlight Fellows didn’t tell:

In 2003, when the “meth epidemic” was the “worst drug plague ever,” Congress amended CAPTA to deal with it — in the worst possible way: It required medical professionals to set aside their professional judgment and turn in to child protective services any mother of an infant “affected” by illegal substance abuse or a fetal alcohol spectrum disorder. Someone — it’s not entirely clear who — is then supposed to create a “plan of safe care” for the infant. Of course, as mandated reporters, doctors already must report when they actually suspect a child is in danger. But CAPTA aimed to take all discretion out of their hands.

Somehow Congress concluded that a child protective services caseworker, whose qualifications often consist of a bachelor’s degree in anything, a quickie training course and an understandable dread of being on the front page if she lets a child go home and something goes wrong, will be in a better position to judge what is safe for the infant than the medical professionals caring for that infant.

So we do terrible harm to thousands of children — tearing them from mothers despite research from still another Worst Drug Plague Ever — crack cocaine — showing that often, staying with those mothers was exactly what they needed most. Similar research is emerging concerning opioids.

There is no evidence that the CAPTA approach to alleged substance abuse makes children safer — and plenty of evidence that it endangers children by discouraging their mothers from getting health care.

Indeed, one recent study concluded: “previous qualitative research has found that policies related to CPS and child removal lead women to avoid prenatal care. Our findings related to [labeling alcohol use during pregnancy as child abuse or neglect] are consistent with this previous research and extend prior findings by indicating that this avoidance of prenatal care may be linked to worse birth outcomes.”

And then came the latest Worst Drug Plague Ever — opioids. Opioid abuse adds a new wrinkle: Addiction can be caused by drugs dispensed legally by prescription. And one of the best ways to prevent the harm of addiction can be the use of medication-assisted treatment — with prescribed drugs such as methadone and buprenorphine, drugs that curb cravings for opioids and ease withdrawal. Unfortunately, there is enormous ignorance about this kind of treatment — within child welfare and elsewhere.

And yet, responding to a 2015 series from Reuters that is remarkably similar to what the Spotlight Fellows produced, Congress made things worse — amending CAPTA to require turning in mothers even if their drug use is legal, and demanding tougher enforcement by the states.

The Spotlight Fellows’ stories read like a call for rigid enforcement of the the “plan of safe care” provision. While that is understandable after reading 7,000 horror stories, that doesn’t make it sound policy. Instead, it actually makes it likely there will be more horror stories.

This is a widely held view among experts in child welfare and substance abuse – at least as widely held as the view of the limited spectrum of experts quoted in the series; yet readers would have no clue that any such debate exists.

How for example, can one produce a story of more than 4,000 words centered around child welfare and substance use without including the perspective of National Advocates for Pregnant Women? Or how about the scores of experts they cite who have a very different take concerning how to approach these issues than the one promoted by the Spotlight Fellows.  Indeed, it was NAPW’s perspective that prompted the New York Times editorial board to urge journalists to rethink their approach to these issues, as outlined in editorials such as this, part of the Times series, “A Woman’s Rights.”

How can one produce such a story without checking with the American Congress of Obstetricians and Gynecologists, which declares that

[O]bstetric care providers have an ethical responsibility to their pregnant and parenting patients with substance use disorder to discourage the separation of parents from their children solely based on substance use disorder, either suspected or confirmed. In states that mandate reporting, policy makers, legislators, and physicians should work together to retract punitive legislation and identify and implement evidence based strategies outside the legal system to address the needs of women with addictions. [Emphasis added.]

Misunderstanding statistics

To the extent that the Spotlight Fellows use data to try to reinforce the horror stories, it can be misleading.  A standard tactic of those seeking to stampede the public into accepting ever more surveillance of families and removal of children is to combine a horror story with a huge number – leaving the impression that there are a vast number of horror stories.

In fact, when it comes to the death of a child, even one is a vast number.  So there should be no need to exaggerate.  But the Spotlight reporters claim that “an estimated 700,000 children are mistreated in the United States each year.” In a tweet, Palmer goes further, stating flatly that “700,000 children are maltreated each year.” In another tweet, she explicitly links the number to a horror story, declaring that Zymere Perkins, a child “known to the system” who died in New York City was “one of the US’s 700,000 child maltreatment victims each year.”

In fact, the 700,000 figure represents only the number of times caseworkers check boxes on forms in which they decide it is at least slightly more likely than not that a child was in some way abused or neglected.  That’s all it takes for child protective services agencies to declare an allegation “founded” or “substantiated.” They are often little more than guesses, made without the family having any chance to defend itself before a neutral arbiter.

Of those 700,000 check marks, 75 percent are for allegations of “neglect.” What is “neglect”?  In Illinois, it's failure to provide "the proper or necessary support ... for a child's well-being." In Mississippi, it's when a child is "without proper care, custody, supervision, or support." In South Dakota and Colorado, it's when a child's "environment is injurious to his welfare." 

Definitions that broad can encompass some genuinely serious, even life-threatening harm to children. But they also can encompass almost every impoverished child in America.  That is why the most serious problem in child welfare is the confusion of poverty with neglect, compounded by the racial bias that permeates the system.  The misuse of this figure worsens that confusion.

Conflict of interest

            In the email in which she said “our team are making great efforts to speak to people from all viewpoints,” Emily Palmer added this: “(I hesitate to use the word "sides" because there really shouldn't be sides when it comes to child welfare.)”

            But there are sides when it comes to child welfare – and there should be. The very nature of the stakes guarantees there will be strong disagreement over how to keep children safe. The fact that there are sides does not mean that the “other side” is evil or ill-motivated. Palmer’s failure to acknowledge this may explain how she wound up crossing what should be a bright ethical line.

            Even as she was researching and writing her stories, she aided an organization that has a strong point of view on these issues.  Ms. Palmer moderated a panel discussion organized and sponsored by an advocacy group, “Children’s Rights,” (CR). The topic was “Children of the Opioid Epidemic.” More problematic, Ms. Palmer wrote a publication for CR.  On its website Children’s Rights has this link inviting readers to Download this fact sheet on Opioids and Foster Care, produced by reporter Emily Palmer. 

            Surely we can all agree that it is improper to write a news story about a topic and write for an organization which advocates for a particular approach to that topic – at the same time.

            In my June 28, 2018 memo to Scott Allen, I wrote:

Perhaps Ms. Palmer views CR as somehow neutral and above the fray, kind of a League of Women Voters of child welfare.  But they are not. They hold strong views, views with which I and many leading advocates and scholars in the field often disagree, and they wield a lot of power to turn those views into policy and practice.  Ms. Palmer’s actions leave the impression that she has a particularly strong affinity for CR, their point of view and their approach to these issues. They leave the impression she’s made up her mind and will exclude other points of view.

In another memo to Allen I wrote:

Suppose the series were about gun control.  Suppose, while working on it, one of the reporters also wrote a “fact sheet” for the NRA – or for Everytown for Gun Safety.  Would it be unreasonable for someone who disagreed with the group for which the fact sheet was written to have concerns?

How these stories are likely to backfire

            Even with all the flaws in the stories, some might ask, how can it possibly be wrong to call attention to child abuse deaths?  Don’t we need to “raise awareness”?

            But that is a straw man. The issue is not whether to call attention to child abuse deaths, but how to do it.  The Spotlight Fellows did it the usual way, but on a grander scale.  And for decades that way has been shown to backfire.

            The reason boils down to the Loch Ness Monster effect:

We’ve all seen those pictures that purport to show “Nessie” – a blurry image of something that looks like a long neck sticking out of the water.  We can only imagine what’s below.  It’s the same with child welfare.

Child welfare systems are more secret than the CIA.  Although the Spotlight Fellows rightly decry the secrecy surrounding child abuse fatalities and the difficulty in obtaining even the most basic information, this actually is the least secret part of the entire system.

Almost the only time the curtain of confidentiality parts, at all, is after a death or a near death.  We may not know anything more, but we know this much: A child died and the child may have been “known to the system.”  That’s the neck sticking up above the water.

But all those other cases, including cases of wrongful removal, and enormous harm to children done by separation from everyone loving and familiar, almost always remain secret. So it’s easy to confuse the part of the monster one can see with the entire beast.

This leaves the impression that the system errs in only one direction – toward leaving children in or returning them to dangerous homes. In fact, child welfare systems are arbitrary, capricious and cruel. They err in all directions.  They do indeed leave some children in dangerous homes, even as they take many more from homes that are safe or could be made safe with the right kinds of help.

But like most of Nessie, those cases remain hidden. As long as no one “drains the Loch” and reveals the entire beast, that distorted impression will lead to “solutions” that only make things worse.

            They make things worse by encouraging foster-care panic. After “the fatality series” is published everyone in the system – from caseworkers to agency directors to judges – runs scared. They’re not going to have the next high-profile fatality on their caseload. So they rush to take even more children needlessly. 

            Of course this does enormous harm to the children needlessly taken – because the typical cases that dominate the caseloads of child welfare workers are nothing like the horror stories. Far more common are cases in which family poverty is confused with “neglect.” Other cases fall between the extremes.  So it’s no wonder at least five separate studies,  two of them massive in size and scope, involving more than 15,000 typical cases, found that children left in their own homes typically fared better even than comparably-maltreated children placed in foster care.  Still another study found that even children born with cocaine in their systems fared better when left with mothers able to take care of them than when placed in foster care.

To understand why, just look south – to the Mexican border and what happened to the children separated from their parents there.  Unlike what happened at the border, workers for child protective services agencies almost always mean well.  But for the children the trauma of separation is just as serious and just as real.

That harm occurs even when the foster home is a good one.  The majority are.  But the rate of abuse in foster care is far higher than generally realized and far higher than in the general population.  Multiple studies have found abuse in one-quarter to one-third of foster homes.  The rate of abuse in group homes and institutions is even worse.

But even that isn’t the worst of it – and this is how getting the “fatality series” wrong can lead directly to more fatalities:  The more that workers are overwhelmed with false allegations, trivial cases and children who don’t need to be in foster care, the less time they have to find children in real danger.  So they make even more mistakes in all directions.  That’s almost always the real reason for the horror stories about children left in dangerous homes.

Consider the very horror story Huseman and Palmer use to illustrate why CAPTA supposedly needs stronger enforcement: Mississippi authorities were repeatedly alerted to the child’s plight.  Their failure to act after being notified had nothing to do with CAPTA.  More likely they were so overloaded investigating cases of children who did not need to be taken from their homes, that they brushed aside the evidence that this child really was in grave danger.

Mississippi has an ugly record of needless removal in cases such as this one, which led to a lawsuit by the Southern Poverty Law Center and a federal investigation which suggested the case was not an isolated incident. So did the Biloxi Sun Herald in this series from 2016. Yet though the Spotlight Fellows focus on Mississippi, this context is missing from their stories.

In a series published at almost exactly the same time as the Spotlight Fellows stories, reporters from the Kansas City Star showed a keen understanding of how errors in all directions interact. Their series looked at what happens at the end of the process - when, hypothetically, a “plan of safe care” becomes a needless removal from the home, becomes a journey from foster home to foster home and ultimately lands a child in a prison cell.  They write:

Kids who could have stayed in their homes take up beds in good foster homes that are needed for severely abused and neglected children whose safety is in jeopardy. Because of that, kids from Oregon to Florida and states in between are forced to sleep in child welfare offices or homeless shelters.

            The same principle applies to fatalities: Overload your workers with investigations of children who don’t need to be surveilled much less removed from their homes, and every case gets short shrift – so more children are likely to die.  All that is in addition to the consequences for children of all the mothers who are scared away from prenatal care and giving birth in hospitals by provisions such as “plan of safe care.”

            So it’s no wonder that, when journalists who did “the fatality series,” fill in the “What did the stories accomplish?” section on awards entry forms, they can say that they “raised awareness,” and they can say that laws and policies changed. Sometimes they can say that spending increased and more caseworkers were hired. What they can’t say is: “We reduced fatalities.”  In fact, the limited evidence available suggests that foster-care panics are followed by increases in child abuse deaths.

Doing “the fatality series” right

            Confronted by the failure of their reporting on these sorts of stories, journalists often throw up a straw man, an accusation that critics want to cover up child abuse deaths or, worse, don’t really care if children die.  Or they say that the stories are “not about” whatever elements would contradict the journalists’ master narrative.

            On the contrary. We want to see more reporting on child abuse deaths, with all the context needed to help people demand policies that will curb such deaths.  Such series should be “about” whatever it takes to help readers make informed decisions.

            Providing that context, and finding real solutions, is not easy – for a reason for which we all should be grateful. Though each is the worst form of tragedy, and the only acceptable goal is zero, the number of fatalities compared to the number of children and youth in America, or even the number “known to the system” makes it far harder to predict them than is sometimes believed.

            As we discuss in this blog post, one might read in a news story: “Half of all child abuse deaths involved children previously known to child protective services.”  (That is, in fact, the estimate the Spotlight Fellows used.)  At first blush that can sound as though half the time, children “known to the system” die.  Of course the figure means nothing of the sort.  The real meaning becomes clear when you add one crucial bit of context: The actual number of children who become “known to the system” over the course of a year.

According to the federal government’s Child Maltreatment report from the Department of Health and Human Services, there were an estimated 1,720 child abuse deaths in 2017.  Of that total, 27.3 percent were previously known, in some way, to authorities.

The Spotlight Fellows say the official figure is an underestimate. They may be right. So for the sake of argument, let’s double the number of child abuse deaths and double the proportion “known to the system” – again to match the Spotlight Fellows’ estimate.  That would give us a total of 3,440 deaths, of which 1,878 involved children “known to the system.”

Sounds like children often, even typically, die right under the noses of child protective services workers, doesn’t it?  But now, let’s add the missing number – the total number of children who become “known to the system” every year.  In 2017 that number was over seven million children - 7,508,000 to be precise.  So now we’re talking not about 1,878 out of 3,440 – but 1,878 out of 7,508,000.

So every year, CPS agencies are expected to figure out which of these 7,508,000 children will die if they don’t intervene in time.  It looks a bit like this: A tiny red needle, barely visible in a big blue haystack.

But even that representation understates the difficulty involved for frontline caseworkers. In the graphic, all of the deaths are in one place.  In real life, they are much smaller needles scattered all over the haystack.

Even showing the needles in a different color can be misleading. Because while some of the case files, like the single example cited in detail in the Spotlight Fellows’ series, turn out to have more “red flags” than a Soviet May Day parade, in many others there was no way to predict the tragedy that would follow.  As one former child welfare official put it: “For every one of these [death ‘known to the system’] cases, I can show you ten with identical circumstances where nothing went wrong.”

            The whole premise that child abuse fatalities can be curbed by finding new methods to try to find the needles in the haystack is, at best, questionable.  Rather, we need to target something completely different: child poverty.

            That was the conclusion of a liberal Texas think tank, the Center for Public Policy Priorities, in this report. The report finds:

● The rate at which people report child abuse does not contribute to more or fewer child abuse deaths.

● The rate at which a state takes children from their parents does not contribute to more or fewer child abuse deaths.

● The rate at which a state screens in reports for investigation does not contribute to more or fewer child abuse deaths.

In short, none of the traditional investigative and "police" functions of child protective services contributes anything to raising or lowering the rate of child abuse fatalities.  Why then should we think that toughening enforcement of the most punitive parts of CAPTA will help?

The report found that these factors do contribute to child abuse deaths:

● High rates of poverty

● High rates of teen pregnancy

● Low rates of services to prevent child maltreatment. 

So shouldn’t stories about the Child Abuse Prevention and Treatment act at least discuss the fact that it has devolved into the Child Abuse Surveillance and Punishment Act?  Shouldn’t they explain that CAPTA never really had much to do with prevention or treatment?

Things the Spotlight Fellows got right

            While the most lurid portion of the project focuses on unquestioning acceptance of the idea what we should enforce CAPTA’s “plan of safe care” provision, another major theme of the stories concerns issues that are more basic: actually figuring out how many children die of child abuse or neglect and fully disclosing information about each such case.

            They correctly point out that there is not even a uniform federal standard for defining a child abuse fatality or near fatality when states report these figures to a federal database, the National Child Abuse and Neglect Data System (NCANDS).  They write:

These inconsistencies make it virtually impossible to use NCANDS to compare numbers from different states or even to spot trends or trouble areas within states, experts say.

            What they do not say is that the one “expert” who has been most prone to make these phony comparisons among states, using them to promote hype and hysteria about child abuse, is Michael Petit – the “expert” who also made the appalling comments concerning race. Yet the fact that Petit repeatedly has engaged in comparisons the Spotlight Fellows themselves say are impossible to do correctly did not stop them from considering Petit a credible source.

            The Spotlight Fellows also make this very good point:

Without reliable information on child abuse, officials are unable to craft fact-driven policies and prevention efforts, said Vincent Palusci, a professor of pediatrics at NYU School of Medicine and a nationally regarded expert in child abuse. Instead, they are left to react to the most extreme, headline-grabbing cases with little notion of broader, systemic patterns or warning signs within individual families. [Emphasis added.]

            Yet with their own reliance on only “the most extreme, headline-grabbing cases” and their encouragement of local reporters to do the same (something discussed below) the Spotlight Fellows make the same mistake.

            As for disclosure, the problem with the way the Spotlight Fellows approach the issue is that it does not go nearly far enough. It is standard operating procedure for those who advocate a “take the child and run” approach to child welfare to push for full public disclosure of cases involving deaths and near deaths – and nothing else.  That’s because the “Loch Ness Monster effect” works to support their agenda.

            But the solution to such distortion is not more secrecy, it’s more disclosure. That’s why NCCPR favors a strong rebuttable presumption that all court hearings and almost all records should be open in all child welfare cases – so everyone can see how child welfare systems err in all directions.

Missing ingredients in the cake mix

            The heart of the Spotlight Fellows project is less the stories than the database – those accounts of nearly 7,000 child abuse deaths.  The Fellows are encouraging local reporters to follow up. 

            But by providing the database without the full policy context – indeed, with a spin that encourages “crack baby journalism” -- they have simply made it easy for local reporters to repeat their mistakes, the mistakes that have characterized the worst of the journalism of child welfare, and recreate the same sorts of stories that have backfired for decades.

            The Spotlight Fellows have created the journalistic equivalent of a cake mix: They’ve done all the hard work, local reporters need merely download the cases form their region, round up the usual suspects for the usual quotes, and bake.

           

The problem is not that the Spotlight Fellows created a cake mix. The problem is that there are so many missing ingredients.  Had they told stories that illustrated how CAPTA’s worst provisions encourage errors in all directions, had they looked at other possible reasons for child abuse deaths, in particular deaths of children “known to the system,” had they raised the possibility that it is actually intervening too much in some families that overloads systems so they don’t intervene enough in others – the point made by the Dayton Daily News – then the database could have advanced the journalism of child welfare, and opened new avenues for finding better solutions.

            Instead, we get only the approach that has failed for decades.  And by making the least difficult story on the child welfare beat even less difficult, it makes it even less likely that reporters will pursue the stories that are much harder to get – the way the Kansas City Star did.

That means all over the country there are likely to be more stories that will set off more foster-care panics, damage many more children and, possibly increase child abuse deaths.

            We concluded our 2018 column about CAPTA by writing:

The idea of using CAPTA as the organizing framework for coping with child abuse, or even thinking about it, is absurd. And the notion that somehow a more powerful CAPTA with more money and more enforcement would somehow help children is profoundly dangerous.

           

            Without ever intending to do so, the Spotlight Fellows have ratcheted up the danger.

ABOUT NCCPR

The National Coalition for Child Protection Reform is a small nonprofit child advocacy organization dedicated to trying to make the child protection system better serve America’s most vulnerable children.  The group was established at a 1991 Harvard Law School conference by the late Betty Vorenberg, a former member of the National Board of the ACLU.  Members of our Board of Directors include Ira Burnim, a former Legal Director of the Children’s Defense Fund who now holds that position with the Bazelon Center for Mental Health Law, Prof. Dorothy Roberts of the University of Pennsylvania Law School, author of the definitive book on child welfare and race, Shattered Bonds: The Color of Child Welfare (Basic Civitas Books, 2002), and Ruth White, former Director of Housing and Homelessness for the Child Welfare League of America.  There is more about what journalists and child welfare leaders think of NCCPR here:  http://bit.ly/1mhIl66

ABOUT RICHARD WEXLER

Richard Wexler’s interest in child welfare grew out of 19 years of work as a reporter for newspapers, public radio and public television.  During that time, he won more than two dozen awards, many of them for stories about child abuse and foster care.   He is the author of Wounded Innocents: The Real Victims of the War Against Child Abuse (Prometheus Books: 1990, 1995).

Wexler has testified before Congress and State Legislatures and advised the U.S. Senate Subcommittee on Children and Families in its 1995 rewrite of the Child Abuse Prevention and Treatment Act. Wexler’s writing about the child welfare system has appeared in The New York Times, The Washington Post, the Los Angeles Times, the Chicago Tribune and other major newspapers.  He is a graduate of Richmond College of the City University of New York and the Columbia University Graduate School of Journalism, where he was awarded the school’s highest honor, a Pulitzer Traveling Fellowship.