From Houston Lawyer and Founder of Justice for Children Randy Burton:
I must address the article in the KARA newsletter today (last Friday) where the failure to protect these known victims is not laid at the feet of CPS.
Child abuse may be a social problem; but, first and foremost it is a crime. As such, all child abuse investigations are the exclusive domain of law enforcement as a matter of law. The fundamental problem with the investigation and prosecution of child abuse is that we have turned this on its head.
Currently, a social service agency (CPS) without law enforcement training and priorities is the initial and, therefore, the default investigator of crimes against children – even though they have no legal authority to do so. They are only charged with determining whether a child should be removed for abuse or neglect.
But, because they are the default investigator of abuse, if they conduct a poor investigation, fail to make a determination of abuse or neglect, or fail to remove the child from a dangerous home AFTER there has been a disclosure of abuse, the case will never be prosecutable.
This is because the child will be silenced by the perpetrator (if not removed) and even if other downstream criminal investigative agencies (police and prosecutors) want to rehabilitate the flawed CPS investigation, it is virtually impossible to do so if the proper evidence was not originally collected or the subsequent investigation by law enforcement finds evidence that contradicts that of CPS. In other words, there will be a fatal discrepancy in the evidence which equals “reasonable doubt”.
Further, CPS has been compromised by an internal conflict of interest: on the one hand they are charged with protecting the child (e.g., removing a child in a dangerous home) and, on the other hand, they are charged with preserving the family and rehabilitating the offender. I have referred to this in testimony before Congress as “professional schizophrenia”: you cannot do both within the same agency without creating an irreconcilable conflict of interest.
This problem can be dated to the early 20th century when CPS literature stated that “it is more important to save the home for the child than to save the child from the home.” While we all might agree that this is a valid proposition when we are talking about poverty and neglect or when we are talking about protecting the residual family once the perpetrator has been removed, leaving a child in a home where they have been sexually abused, chronically physically abused, where one child has already been murdered, or where there is evidence of criminal neglect (starvation; scapegoating of a child; putting a child in a cage or locking them in a closet) is unacceptable. And yet, it happens every day in CPS investigations across the country.
The failures of this flawed System can be directly attributed to the noble idea of trying to save damaged families. But, in practicality, it means that far too many children are left in criminally- violent homes in the pursuit of the failed social policies of “family preservation” and “family reunification”. These are the 2 branches of the same idea created under the Child Welfare and Adoption Assistance Act of 1980 – part of the Reagan “pro-family” legislation. In order to decrease the number of removals of children from homes and save money, this Act (P.L. 96-272) provides matching federal funds only to state CPS agencies that demonstrate by federal audit that they made “reasonable efforts” to preserve families prior to removal or to reunify families after removal:
“(15) effective October 1, 1983, provides that, in each case, reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home.”
Because this federal funding is roughly 50% of all the monies used to fund state CPS agencies, family preservation has become a goal in and of itself at the highest levels of state CPS organizations. These CPS bureaucrats have made this policy preeminent in caseworkers’ decision making, which has led to the foreseeable and unconscionable reabuse and death of countless children across our country.
I had the miraculous opportunity to meet the legislative aid of former Senator Nancy Kassebaum (R-Kansas) in the early 1990s. She was a former CPS caseworker. I helped her draft what is now known as the Adoption and Safe Families Act of 1997 to address the reasonable efforts legislation in 1980. The ASFA was signed into law by President Clinton. For my part, I wrote the following:
ADOPTION AND SAFE FAMILIES ACT OF 1997 (ASFA)
SECTION. 101. CLARIFICATION OF THE
REASONABLE EFFORTS REQUIREMENT.
(A) in determining reasonable efforts (TO PRESERVE THE FAMILY UNIT)…with respect to a child,… the child’s health and safety shall be the paramount concern.
(D) reasonable efforts …shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that–
(i) the parent has subjected the child to aggravated circumstances (as defined in State law, which definition may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse); OR
(ii) the parent has–
(I) committed murder;
(II) committed voluntary manslaughter;
(III) aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter; or
(IV) committed a felony assault that results in serious bodily injury to the child or another child of the parent; or
(iii) the parental rights of the parent to a sibling have been terminated involuntarily…
Until and unless this emphasis on family preservation and reunification has been removed as the basis for federal funding to state CPS organizations and make law enforcement the lead investigators of child abuse allegations, it will not matter how much money we throw at CPS, what caseworkers’ caseloads are, or whether CASA volunteers are more involved in children’s cases.
Chairman and Founder / Partner, FisherBroyles, LLP
Randy Burton founded Justice for Children in May of 1987 and currently serves as President of the organization. Mr. Burton was working as an assistant District Attorney in Harris County when it came to his attention that the legal system was not doing enough to help abused children. He has been featured on many major television shows, such as ABC’s Good Morning America, Primetime Live, and CNN’s Nancy Grace Show, and has received numerous awards for his work with Justice for Children. Randy Burton is a partner at the national law firm of FisherBroyles, LLP. In 2014, he received an Honorary Doctorate of Letters from Swansea University for his child advocacy work and his contributions to the Wales (International) Observatory on Human Rights of Children and Young People.
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There are many forces at play on Child Protective Services today
Parental rights, Racial disparities,
better tracking and reporting
of outcomes based metrics in CPS
and the over-institutionalizing
of children in the system
First, we need to save more children from crimes
being committed upon them in the homes they are raised in.
KARA reports on the issues of invisible children
This article submitted by Former CASA Guardian Ad Litem Mike Tikkanen
All Adults Are the Protectors of All Children
INVISIBLECHILDREN – KARA (KIDS AT RISK ACTION
“What we do to our children, they will do to our society”
(Pliny the Elder, 2000 years ago)