America's Child Protective System; H. Lapp

In Westchester County, New York, David and Jennifer Beck, along with their parents, have suc cessfully sued county officials on the grounds of "unreasonable search and seizure." A Federal Court judge agreed the children's constitutional rights were violated when they were strip-searched at school in a bungled child abuse inquiry. In Arizona, David and Tobi Miller went public about their children's removal from their home after they were falsely accused of child abuse. Their case prompted a probe into the state's child protective agency by state legislators. "I will get over this," says Tobi Miller. "But I worry about my children. This may ruin them. Is that protection?" Joseph:No Due Process "Is this protection?" is the sentiment echoed by Joseph Ryan, a small-town teenager from western New York who was abruptly picked up from his school by a team of police officers and social work ers. A ruling in Family Court designating his moth er, Evelyn, as neglectful for not agreeing to the psychological treatment which a social worker rec ommended for him was all it took to have him Hannah Lapp is a dairyfarmerand writerin Cassadaga, New York.

picked up. The judge, without ever speaking to Joseph, agreed to have him placed in a children's home and treated for "schizoid disorder." In the name of child protection, he was forcibly removed from the family he trusted and the home he loved. Joseph calls it a kidnapping. Child Protective Services, or Family and Youth Services, as the agency is called in some states, is a branch of each county's social services system. The problem with the involvement of social welfare agencies in child abuse issues is that these agencies are not authorized to carry out the functions of law enforcement. In order to bring mistreated children under their jurisdiction, therefore, they must approach child abuse from a position foreign to our justice system. Instead of true investigation and prosecution of a crime, they operate on vague terms such as "offering services" and "protecting a child's best interests." Even those cases which make it to court usually receive only Family Court attention. This means there is no public trial, no jury decision is permitted, and a ruling will be ren dered whether or not the accused or the purported victim has a chance to present his case.

Our modern child protection system touts all this as a humane approach, which rehabilitates rather than punishes those afflicted with the "ill ness" of mistreating their children. However, the claim of helping rather than prosecuting parents gives the system an excuse to sidestep all the "due process of law" protections which are enjoyed by both the victim and the accused under our Consti tutional justice system. Joseph Ryan would have had more rights had he been charged with a crime. As it was, no one was 477 478 THE FREEMAN • DECEMBER 1992 obligated to read him his rights, no one had to explain to him what was happening, his own objec tions didn't matter, and there would be no oppor tunity for him to be heard in court. "I was paraded around the side of tl!e school and into the front parking lot where their car was parked," Joseph recounts in painstaking detail. There are large windows in the front of the school, and you can't tell me the kids are never looking out."

He was scared, he admits, but also "mad." He and his family had been fighting for months against Social Services' efforts to have him removed from home, and he had resolved not to let it happen. But you don't argue with uniformed officers.He had been taught to respect the law and had never been in trouble like some kids his age. So he just asked them what was happening, and why. "No one said anything," he recalls. "But I assumed they were taking me to the children's home, and I was right." Joseph remembers asking his caseworkers whether his mother had been notified of what was taking place. He was told she was. Although Eve lyn was aware of the neglect ruling, she had no indication her son would be picked up on October 13, 1989, the day he failed to return home from school. She learned the truth only after phoning his school. During the previous couple of years, Evelyn had had unrelated complaints as to the competence of her county's Social Services department. She had voiced some of her grievances in letters to the edi tor published in her town newspaper. Charging her with neglect would be the agency's way of getting even with her, Evelyn suspected. Sure enough, one of the accusations brought against her in family court referred to those "crazy letters."

That her children should suffer over her own differences with the agency was almost more than Evelyn could take. Even without this added crisis, her two sons had been under stress lately.She was ill with what doctors called a terminal liver prob lem. The family was barely scraping by financially. On top of that, a close relative had been diagnosed with a brain tumor. The school Joseph attended reported he had a short attention span and problems fitting in with his peers. At the same time, he excelled in the sub jects he .liked, such as art. Teachers called him a likeable kid who never made trouble. School officials, including Joseph's school counselor, felt the placement at the children's home was uncalled for. Indeed, everybody who knew Joseph well-his family, his physician, and a social worker from Catholic Charities who worked with the family-were stunned by the diagnosis and treat ment recommendations handed down by Social Services.

Joseph had never wanted to see the psychologist who would diagnose him as schizophrenic, but Social Services ordered it. After the diagnosis and his placement in the children's home, Joseph called up the doctor to tell him, he says, how unfairly he felt he was being treated. The same psychologist complained in a subsequent family court hearing that he felt threatened by the phone call. Joseph, meanwhile, was not permitted to speak for himself in court, and was quickly ushered out when he did appear. "I didn't like it at all," he says. "I feel that the most important views were withheld from the court." In a show of representing the child in family court proceedings, each child is assigned his own "law guardian." Paid by the family court system, this lawyer has no incentive to exert efforts on the youngster's behalf, and particularly not in conflict with the system.Joseph callsthe "law guardian" he had "disconnected." She'd take only about ten minutes with him right before a hearing, and he would tell her things were going well at home.

"Then," he says, "she'd go into court and say, 'the kids are having problems at home.'" In the modern version of child protection, all this is nothing unusual, nor should it be changed. As one Social Services spokesman puts it, "All children want to return to their home; the more abused they are, the stronger is their desire to go back." Since the abused kids don't know what's best for themselves, in the system's eyes, allowing them to speak in court would at best be an inconvenience and at most too traumatic for the child. A court hired psychologist can recommend that the child not be subjected to an appearance in court, a judge will concur, and no one else has any say. David:The BestPlaceIs Home Convenience apparently goes a long way in some family court cases. A family from Chau tauqua County, New York recently came forward AMERIC~S CHILD PROTECTIVE SYSTEM: IS IT REALLY PROTECTION? 479 with their incredible account of their child's disap pearance into foster care after Child Protection Services received a tip he had been spanked by his father. David Gard, Jr., now thirteen, recalls being plucked out of school and cut off from any type of contact with his parents for six months. "I felt abandoned," he recalls. "At times 1 wondered, 'why do I even exist?'"

An honor student for most of his school years, David was transferred into another school system, one in which he felt uncomfortable. When he pleaded to be allowed to go home, his caseworkers ignored him. "They tried to brainwash me," he says. He explained to them that his father had spanked him for walking on the lake when the ice was thin. "They'd tell me, 'he didn't do it because you misbehaved, he did it because he wanted to,'" says David. David Gard's family court judge did allow him into the courtroom-but not until after six months away from his family.It took the court another six months to render the decision that home was the best place for him after all. For David, it was a year of separation from the most important people in his life-his parents, grandparents, and siblings. And he cannot forget the pain of missing out on two events that were to have been highlights of his preteen years: a huge family reunion and his uncle's wedding.

Many youths who challenge their treatment by the child protective system run up against a brick wall. Some, like David, are simply ignored when they speak up. Others are told they have to "coop erate," which translates into testifying against their parents, before they can return home. In Joseph Ryan's case, an attempt to force his way past staff at the children's home to see his mother when she came to visit him was labeled "violent." For this behavior, the facility's psychol ogist ordered him to take a powerful sedative called Thorazine. The staff told Joseph the pills were "vitamins." He sensed immediately that these were no vitamins, so he found ways to hide them instead of swallowing them. Evelyn, by then, was allowed weekly visits with him, and this gave him the opportunity to slip some pills to his mother to have them analyzed. Joseph felt most of the staff treated him favor ably, but he remained at odds with the facility's psychiatrist, who treated him as though he were crazy,he says. When Joseph confronted her about the Thorazine prescription, and questioned whether she got her degree "from a crackerjack box," she became upset and ended up threatening him with a "defamation of character" charge.

Joseph's and his mother's strength of willfinally did prevail. The drug prescription was discontin ued, and the children's home suddenly announced it was discharging him after only five months of the eighteen-month placement were up. The reason cited was Joseph's lack of cooperation with their program, which was blamed on Evelyn's resistance to the placement. After returning home Joseph proceeded to become an honor student, received awards for his artwork, and now is looking forward to an educa tion and career in the field of engineering. Joseph Ryan was fortunate, as are all foster chil dren who come through a crazy system with their senses intact. Perhaps for every Joseph or David, there is another child with a story to tell of actual abuse by parents, which the Child Protective System failed to remedy. It could leave us confused-until we look into the facts. Scrutiny of America's child pro tective system by researchers such as Allan Carl son for the Rockford Institute, Richard Wexler, author of Wounded Innocents, and Mary Pride, author of The Child Abuse Industry, reveals a sys tem in such chaos that justice will naturally be the exception rather than the rule.

The Excuse-Makers Many excuses have been made for this chaos, among them an imaginary lack of funds and over worked caseworkers. These excuses only divert our attention from the erroneous premises on which our nation's entire juvenile court and child protective system is built. First of all, child abuse issues should never have been removed from the criminal justice system with its constitutional guidelines, to be tossed into an already inept social welfare bureaucracy. That this was done in the name of serving "the best interests of the child" only proves the hypocrisy under which our modern child savers operate. The social welfare approach to child abuse issues defies justice on every count in which it pre tends to be humane. There is counseling instead of prosecution of alleged abusers, which means that actual abusers can get by with just some coddling 480 THE FREEMAN • DECEMBER 1992 as soon as they 'fess up, while parents who main tain their innocence can get a sentence sometimes worse than death: the permanent loss of their chil dren. There is the perverted practice of nabbing the victim rather than the perpetrator of an alleged abuse. And there is the arrogant cry of "confiden tiality," which asserts that child abuse specifics are too sensitive for the public to be privy to. The list of injustices goes on and on.

However, it suffices to say that there is no reason for our present system to work, and no remedy for its failures, without a return to Consti tutional constraints. The founders of our nation realized that a good justice system is hard to come by, and at best, there would be errors, so they were careful to incorporate specific safeguards into Rights for Robots their new system of government. Among these safeguards are the security of a person in his own home absent a probable cause warrant, and the right to face his accuser if and when he is tried. Even more crucial to justice are those safeguards which recognize the fallibility of judges and the consequent need for them to be accountable to the general populace. These safeguards include the right to a public trial by jury. Any worthwhile reforms in our child protective system must therefore include a return to full pub lic scrutiny of the actions of child welfare agencies and courts. I dare say the oppression of youngsters such as Joseph, David, Alicia, and the Beck chil dren, could have been averted had this been done all along. D IDEAS ON LIBERTY M illions of our people now look to the government much in the same fashion that their fathers of Victorian times looked to God. Political authority has taken the place of heavenly guidance.

Herbert Spencer in that wonderful prophecy, The Man Versus the State, explained in detail what would happen. He foretold with exactitude the present rush of the weaklings for jobs as planners and permitters, telling other people what not to do. You will have noticed that while we are all under the thumb of authority, authority becomes composed of those who, lacking the courage to stand on their own feet and accept their share of personal responsibility, seek the safety of official positions where they escape the consequences of error and failure. Active, energetic, and progressive persons, instead of leading the rest, are allowed to move only by the grace and favor of that section of the population which from its very nature lacks all the qualities needed to produce the desired results. Authority is the power to say no, which requires little or no ability. On a broad view, the all-important issue in the world today is individualism versus collectivism.

The Individualist thinks of millions of single human souls, each with a spark of divine genius, and visualizes that genius applied to the solution of his own problems. His conception is infinitely higher than that of the politician or plan ner who at best regards these millions as material for social or political experi ment or, at worst, cannon fodder. -SIR ERNEST BENN Economicsand Ethics in the PublicPolicy of the FreeSociety by Alexei M. Marcoux M y economist friend stood aghast upon learning of my support for Proposition 13, the California property tax initia tive recently upheld by the U.S. Supreme Court. I argued to him that taxation, being virtually indistinguishable from theft, is morally wrong and therefore any measure circumscribing the taxing power of government-even if only over a select group of citizens (in this case, property owners)-is just. "But," my friend intoned with a note of paternal solicitude, "it's inefficient."