Federal Lawsuit Goes After Clark County Nevada to Protect Children in Foster Care- Judge Denies Suite Why?

I-Team: Federal Lawsuit Goes After County Family Services
Updated: Sep 02, 2009 8:09 PM EDT
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I-Team: Federal Lawsuit Goes After County Family Services
A California appeals court may help to decide the future of Nevada’s child welfare system. At issue is whether a lawsuit against the state and Clark County should include all foster children.

The National Center for Youth Law, a California-based child advocacy firm, filed the case in 2006 on behalf of all foster children. It alleges kids in the custody of Clark County regularly suffer from physical abuse, a denial of medical and mental health care, and a lack of a permanent home due to the failures of the system that’s supposed to protect them.

“Class certification is important so that absent members of the class, children who in the future come into foster care and those who are now in foster care will be entitled to the protections that we hope to obtain for them through the federal court,” said Bill Grimm with the National Center for Youth Law.

Instead of monetary damages, the lawsuit seeks reform. In court records, Clark County argues reform efforts are underway and have been for several years. They insist many of the lawsuit’s claims are outdated.

The lawsuit names 10 children allegedly harmed by the action, or inaction, of the Clark County Department of Family Services, including one who was scalded to death in a foster home.

The surviving plaintiffs however have either been adopted or aged out of the foster care system so the firm bringing the suit seeks to include all foster kids to make the case a class action.

The Nevada federal judge hearing the suit denied their motion. Now the Ninth Circuit Court of Appeals will decide whether he made the right decision.

Efforts to settle the case stalled in recent months. The county says, in part, because the appeals court decision will have a significant impact on the case and whether there are a few plaintiffs or several thousand.

No word on when the court may issue its decision.

Nevada Pays for Lost 2 Year old Child written by Mike Tikkanenon

Nevada Pays for Lost 2 Year Old Foster Child
Published by Mike Tikkanenon June 27, 2009in Crime and Courts, Guardian ad-Litem, Invisible Children, Kids At Risk Action (KARA), Politics and Funding, Public Policy and The States. 0 Comments
Tags: at risk children, dara goldsmith, daughter went missing, exfed investigations, failure to protect, foster child, Guardian ad-Litem, I-team, kara group, lost 2 year old, missing girl case, north las vegas foster home, sued clark county.

With shrinking resources, each state and all counties need to remember the burden placed on county workers & what happens when that burden is excessive. As a long time Hennepin County volunteer guardian ad-Litem, I appreciate the work social workers do to help at risk children and understand the value cared for youth bring to our communities. I also know what happens to children that are not taken care of. This article from the Las Vegas News points out a small part of the cost of failure:

I-Team: Settlement Reached in Missing Girl Case

A settlement has been reached in the civil lawsuit surrounding the disappearance of a 2-year-old foster child. The natural parents of Everlyse Cabrera sued Clark County when their daughter went missing from her North Las Vegas foster home three years ago.

Not long ago, Everlyse’s mom said she wasn’t sure she’d ever settle. Marlena Olivas wanted a trial, she claimed, to expose Clark County’s failure to protect her little girl. But after intense negotiations, the parties reached a $500,000 deal with $250,000 earmarked for Everlyse, should she be found alive on or before her 25th birthday. If she is not, the money is returned to the county.

Some remaining funds will be distributed to her little brother Benjamin, who shared the foster home with Everlyse, and to her biological mom and dad. Benjamin stands to receive $35,000. Her parents get $22,000 each.

The settlement also provides for a scholarship fund in Everlyse’s name, a reward for information about her disappearance, and monies to continue the private investigative effort to find her.

The agreement releases Clark County from any future claims and its employees do not have to admit any wrongdoing. “The most important thing for my perspective is not necessarily a punishment for the county, but to take care of Everlyse. So my concern was not seeing that the county had to turn over the money and had to risk losing that money, but realistically that if Everlyse is found there’s going to be money to provide for her,” said Everlyse’s guardian ad litem Dara Goldsmith.

Before a judge can formally approve the settlement, it must be accepted by the Clark County Commission.

A second battle is brewing over a $200,000 payout from Clark County’s foster parent insurance carrier. Those funds are not part of the negotiated agreement.

Anyone with information about the case, no matter how small, is encouraged to share it with the National Center for Missing and Exploited Children at 1-800-THE-LOST or James Conklin with ExFed Investigations at (702) 204-7654.

Who is Watching the Watchers – Another Child in Foster Care Dies

Died February 22,2001

Foster mother charged with murdering boy
West Side woman whose foster child died Thursday after being submerged in a tub of freezing water was charged Saturday with first- degree murder.
Police say 29-year-old Flora Stewart punished 6-year-old Allen Kalfus for misbehaving by holding him under a shower of cold water, echoing a similar charge leveled against the mother last year.

Stewart, of the 4300 block of West 19th Street, told police she sent Allen to take a bath and heard him fall after about 45 minutes. Stewart said she found him unconscious in a T-shirt and underwear in the tub with a bump on the back of his head. Police said he also had a first-degree burn under his eye.

A 2-year-old foster child living with Stewart was removed by the Department of Children and Family Services. Two teenage nieces also were living with her.

Last May, Stewart was accused of forcing Allen to take cold showers, said Cook County Public Guardian Patrick Murphy. DCFS investigated the charge, which the boy confirmed but then recanted, and DCFS said it was unfounded, Murphy said.

Two months later, South Central Community Services, the agency that placed the boy, decided Stewart wasn’t cooperating and said the boy should be removed. Stewart filed an appeal, and during mediation, she apologized and promised to try harder. Ultimately, the mediator, Stewart and South Central agreed to leave the child in the home, Murphy said.

Both Murphy and DCFS Director Jess McDonald say the system needs to change.

Foster child’s death ruled homicide

A West Side woman whose foster child died Thursday in a freezing bathtub had been allowed to keep the boy last year after she was cleared of an anonymous accusation that she forced him to take cold showers, officials said Friday.

The freezing death of 6-year-old Allen Kalfus was a homicide, the Cook County medical examiner ruled Friday. Chicago police were still investigating, and no charges had been filed Friday night, said officer Matthew Jackson.

A child welfare official said that last year the foster mother was accused in an anonymous tip of neglecting the boy. The call to the hotline of the Department of Children and Family Services said the foster mother, 30, was forcing Allen to take cold showers after he wet his pants, officials said.

The accusation was investigated and determined to be unfounded. But the agency that had placed the boy in the home recommended that he be removed because the foster mother wasn’t cooperating. After state-required mediation, the private and government agencies agreed to leave him in the home.

Allen Kalfus died of hypothermia Thursday at 4336 W. 19th St. The foster mother had called police, saying she found him unconscious and clothed in the tub.

Another foster child in the home, a boy of 2 or 3 years old, was removed by DCFS on Thursday and placed with another foster parent, said Andy Martinez, a spokesman for DCFS. Two teenagers have been placed with relatives.

Beware Child Protective Services: What Victims, Advocates, and Mandated Reporters Need to Know


Probably no other public agency leaves victims and advocates more perplexed than Child Protective Services. On the one hand, people think of CPS with appreciation as they envision a selfless agency rescuing innocent children from horrific conditions. Indeed, CPS workers across the country do this routinely. The gratitude is deserved.

At the same time, the agency seems to be perpetually marred by a steady drumbeat of nightmare stories about CPS emanating from the very families CPS is supposed to serve. This text deals with just one of these problems; the CPS practice of removing or threatening to remove children from the nonviolent, non-offending parent in cases of family violence. This guide explains why this happens with such frequency, how to help prevent it from happening in your case, and what to do about it if you’re already caught in its grip. (Since the non-offending, nonviolent parent in these cases is usually the mother, we often refer to this parent as ‘the mother’, though there are certainly cases where the non-offending parent is the father.)

The Situation as it Usually Unfolds

In brief, the particular problem we cover usually unfolds like this. A mother herself seeks help from CPS or becomes involved with CPS through someone else’s report of suspected child abuse. Her child has been physically or sexually abused by a family member, usually by a male family member, or there are concerns the child is living in a home where there is domestic violence. At first, the mother naturally anticipates that CPS will try to help her and her child, and try to punish and stop the perpetrator. So these mothers are stunned when suddenly the CPS/juvenile court system turns its sights on her, even though everyone agrees she didn’t perpetrate the abuse or violence.

Suddenly she is the one under investigation, and the perpetrator is seeming to be all but ignored. And worse, CPS is threatening to take her child from her, or has already done so without warning or notice, and is threatening to keep the child, right at the time that mother and child need each other most. She feels the system turn hostile toward her. Did she, the non-offending parent, protect the child from the violent parent? Did she protect the child from molestation? Did she protect the child from being exposed to domestic violence in the home? Well, no, obviously she did not, or could not, or, in the case of molestation, often didn’t know about it.

Instead of being treated more as a co-victim of a violent perpetrator, with help and guidance provided according to the mother’s expressed needs, she is treated more as a co-perpetrator, with CPS establishing mandated controls over virtually any which aspect of her life CPS chooses, all under threat of losing her child. In addition to court dates at which it is her behavior that’s in question, CPS gives her a mandated, often overwhelming set of programs and goals she must comply with to the satisfaction of the CPS/juvenile court system, in order to – maybe – get the child back – and maybe not. She is also held accountable for maintaining a cooperative attitude throughout, even though she is, in fact, in a profoundly adversarial relationship with CPS (which is why she’s given an attorney at court time). At the same time, she begins to realize that the CPS/juvenile court system isn’t pushing to hold the perpetrator accountable for his violence, nor is CPS even invested with the power to do so.

Most mothers say they would rather be threatened with jail than to be threatened with the loss of her child. Yet as invasive, terrifying, and awesome as this governmental threat is, virtually all the decisions as to her fitness, compliance, and fate are being decided at the lowest judicial standard of evidence, 51% of the evidence, the ‘preponderance of the evidence’ standard. This is a far cry from the ‘beyond a reasonable doubt’ standard the government must reach before sentencing someone to jail for even the briefest time.

The level of proof against her that CPS is required to put forth is so minimal that it provides the mother little protection against any abusive, prejudiced, or discriminatory exercise of power by CPS. The low evidence burden on CPS also makes it nearly impossible for the mother to defend herself, especially against such vague accusations as ‘failure to protect’, or that ‘she knew or should have known’, things which don’t even constitute a crime in the criminal system. And to top off the injustices, an all too common requirement on her must-do list is that she and/or the child must partake in family conferencing or a family reunification plan in which one or both must meet, mediate, or co-counsel with the perpetrator – the very same perpetrator from whom the mother has been accused of ‘failure to protect’ the child.

The Dawn of Recognition

Unfortunately, such stories are not the result of occasional human errors that are bound to occur in any public agency. They are, instead, inevitable and frequent outcomes stemming from the flawed founding premises and the weak legal underpinnings of the CPS/juvenile court system. The structure of the system drives toward these injustices no matter how well intentioned individual CPS workers may be. Nor is this to say that children should never be removed from the non-offending parent. There are circumstances in which they should. The problem is that the system is so arbitrary, sexist, secret, and outdated, that it tends toward abusive or mistaken results.

In the last decade, there has been growing recognition and discussion of the CPS problem as it pertains to the non-offending parent. In 1999, the National Council of Juvenile and Family Court Judges put together the Greenbook Initiative, a set of 67 recommendations aimed at remedying precisely this set of problems. But though the Greenbook gives long overdue recognition to the issue, the recommendations don’t call for installing any firm checks on the system, as will be discussed in more detail in a later section.

And in 2004, in New York state, there was a landmark settlement in a class action lawsuit against that state’s child welfare agencies. The lawsuit, Nicholson v. Scoppetta, had been brought by mothers who had their children removed for no other reason than that the mothers, victims of domestic violence, had failed to protect their children from ‘exposure’ to the domestic violence. The 2004 lawsuit agreement and an earlier injunction prohibited child welfare agencies from using this reason alone to remove children from non-offending parents.

Though the lawsuit put CPS agencies around the country on notice of their wrongdoing and harm done in these cases, to date it has brought only modest change in practice. The vague laws and weak evidence standards governing CPS means that CPS workers need only adjust the language used in their justification for removing a child, offer the usual scant proof, and many juvenile courts continue removing children in these situations as before.

Perhaps the brightest spot on the horizon is the year 2005 resolution passed by the National Council of Juvenile and Family Court Judges in support of presumptively open hearings with discretion of courts to close. Since their founding, most CPS/juvenile court proceedings have been operating in secret, completely off the public record. This secrecy has mushroomed the system’s tendency toward abuse. The judges’ 2005 resolution in support of open hearings is not yet law, but it’s a promising step. It’s highly unlikely any of the system’s abuses will be corrected until this essential public airing and public scrutiny of the system’s proceedings is firmly set into law and practice.

The Oppressive Swath of Danger and Damage

The harm of the widespread CPS practice of removing or threatening to remove children from non-offending parents extends far beyond the dangers and injustices to individual mothers and children. The harm extends to nearly every poor, immigrant, or minority race mother who is trying to deal with family violence. Most have heard first hand stories of CPS removing children from other mothers in their neighborhoods. As a result, they become reluctant to seek help for their own situations for fear that the same thing might happen to them.

Though we include a fair amount of information about the structure and history of CPS, the purpose of this guide isn’t to do policy analysis nor to make recommendations for change. The purpose of this guide is to give family violence victims, advocates, and mandated reporters information and tips that can help you, as best as possible, to understand and avoid the pitfalls and abuses of the CPS/Juvenile Court system as they pertain to the non-offending parent.


Part 1 – Key Facts About Child Protective Services and Child Welfare Agencies
Though most of the information in this section is meant to explain why so many non-offending parents get victimized by the CPS system, we start by correcting a very common misconception about mandated reporting.

1. In California, and Many Other States, Mandated Reporters Do NOT Have to Report to Child Protective Services.

We start here because so many counselors, teachers, doctors, and other mandated reporters, many of whom are already sympathetic to the problems mothers experience with CPS, say there’s nothing they can do about it. They believe their state laws require that whenever they suspect child abuse, they must make a report to CPS. But that’s not, in fact, what the law in California and many other states says at all.

As you can see clearly in the California law printed here, the law gives mandated reporters a choice of institutions to which they can report. You can make your report to police, sheriffs, probation departments, or child welfare agencies. In fact, in California and many other states we’re familiar with, the mandated reporting laws put child welfare agencies last on the list of options.

Here is the section of the California State Mandated Reporter Law that pertains to whom one should report.

California Penal Code Section 11165.9
11165.9. Reports of suspected child abuse or neglect shall be made by mandated reporters, or in the case of reports pursuant to Section 11166.05, may be made, to any police department or sheriff’s department, not including a school district police or security department, county probation department, if designated by the county to receive mandated reports, or the county welfare department. Any of those agencies shall accept a report of suspected child abuse or neglect whether offered by a mandated reporter or another person, or referred by another agency, even if the agency to whom the report is being made lacks subject matter or geographical jurisdiction to investigate the reported case, unless the agency can immediately electronically transfer the call to an agency with proper jurisdiction. When an agency takes a report about a case of suspected child abuse or neglect in which that agency lacks jurisdiction, the agency shall immediately refer the case by telephone, fax, or electronic transmission to an agency with proper jurisdiction. Agencies that are required to receive reports of suspected child abuse or neglect may not refuse to accept a report of suspected child abuse or neglect from a mandated reporter or another person unless otherwise authorized pursuant to this section, and shall maintain a record of all reports received.

One obvious question after reading this law is why are so many mandated reporters taught incorrectly that they must report to CPS when the law in many states so clearly gives mandated reporters a choice. The reasons will become clearer in the section on the history of child protection. But in brief, CPS agencies were established back in the late 1960’s and 1970’s at a time when a strong national consensus had developed that children shouldn’t suffer abuse in the home. However, it was also a time when family violence was not yet viewed as criminal, and perpetrators were not held accountable. CPS powers and functions were shaped to reflect that ambivalent constellation of beliefs. And today, despite advances, there is still strong societal resistance to holding family violence perpetrators accountable. And there’s a corresponding tendency to channel intrafamilial child abuse cases into CPS where policies and powers are set to detain the child and not the perpetrator.

But the main point we want to underscore here is that mandated reporters in many states can choose not to report to CPS. You have other options, and often those other options will be much more beneficial for both the mother and the child.

NOTE 1: Finding the Text of Your State’s Mandated Reporting Law – Most states have their full legal codes on the Internet in searchable form. Go to your state’s legal codes page. In most states, the mandated reporting laws will be in your state’s Penal Code. Search ‘child abuse mandated reporter’ or similar term.

NOTE 2: Cross Reporting – In California and in many other states the child abuse mandated reporting laws require ‘cross-reporting’ between agencies. This means that the agency which receives the initial report must immediately send copies of the report to other designated agencies. So if CPS receives the initial report, CPS must immediately send a copy of the report to the relevant police agency and to the District Attorney’s office, and visa versa. This cross-reporting requirement has little effect on the problems we’re trying to outline here because in general practice the agency that first receives the report is the agency which takes primary responsibility for handling the case.

2. CPS Does Not Have the Power to Open a Criminal Case Against the Perpetrator, Nor Do They Have the Power of Arrest. CPS agencies are not law enforcement agencies. They are social service agencies. This explains why CPS does not take action against the perpetrators of the violence.

Child Protective Services do not have the power to open a criminal case against perpetrators of child abuse. They do not have the power to do criminal investigations of child abuse, nor the power of arrest. Nor does the juvenile court system that corresponds to CPS cases seek to prosecute the perpetrators, nor are these courts invested with the power to do so.

CPS workers are not law enforcement officers, they are social service workers. Child Protective Services are a branch of your state social services department. They are not part of your justice department nor of your local law enforcement agencies.

Understanding this is key to understanding why the CPS/juvenile court system does not hold perpetrators accountable for violent acts against a child, nor does it seek to gather evidence for prosecution, nor to punish the perpetrators for what they’ve done. The CPS/juvenile court system was never intended nor empowered to do so.

So, if your daughter was raped by her stepfather, for example, CPS will not investigate his crime, will not seek to punish him, nor in any way hold him accountable. Likewise, if your husband is violent with you and CPS is looking into the status of the children, CPS has no power to hold the perpetrator accountable for his violence.

NOTE 1: The CPS ‘Investigation’ – One of the things that creates confusion on this issue is that CPS and others use the word investigation to describe the CPS process of looking into the child abuse matter. But these are not criminal investigations where evidence is gathered to determine ‘beyond a reasonable doubt’ who committed a particular crime, and how, so that the perpetrator can be brought to justice.

A CPS ‘investigation’ can be better understood as a social narrative report on the status of a child and the child’s family. To be sure, the CPS report centers around the issue of the suspected abuse. But once CPS determines it’s ‘more likely than not’ that the abuse occurred, that satisfies CPS inquiry into the incidents themselves.

Different from a criminal investigation, the main purpose of the CPS report is to determine whether or not the child needs to be protected from future abuse, and if so, what needs to be done to protect the child from future abuse. As such, CPS reports focus in on detailing the family histories of the parents, the psychosocial and economic conditions of the home, the relationships between the family members, the school and educational status of family members, as well as covering the alleged abuse. All of these things, except for the abuse, would be completely irrelevant in a criminal investigation.

NOTE 2: Juvenile Court Powers in CPS cases – In many states, juvenile courts do now have the power to order perpetrators into counseling, and in some states have the power to order the abuser out of the home. These decisions, however, are rendered with the purpose of protecting a child from future abuse, and not with the purpose of holding the perpetrator accountable.

3. The CPS/juvenile court System Has Only One Significant Power, the Power to Remove Children from their Parents.

Although CPS does not have law enforcement powers, unlike most other social service agencies, CPS does have one awesome power, the power to take custody and remove children from the home. The stated purpose of this power is to protect the child from future abuse. The stated purpose is not to punish anyone, though obviously for parents and children who love each other this forced removal can be the worst punishment of all.

The lack of law enforcement powers explains why CPS does not take action against perpetrators. The power to remove children explains why CPS so quickly turns its sights on the non-offending parent.

Once CPS decides that abuse of a child or violence in the home has probably taken place, the CPS worker must then decide how best to protect the child from future abuse. Since it’s usually obvious that the child should not be immediately returned to the perpetrator of the violence, CPS quickly turns to the question of whether or not the child should stay with the non-offending parent. That’s how and why CPS becomes so fixated on ‘investigating’ the nonviolent parent. Did the mother protect the child from the abuse? Did she know, or should she have known, that the child was being molested? Did the mother protect the child from living in a home with domestic violence? Will she protect the child in the future?

No matter how you look at it, the circumstances of these situations can almost always be construed to indicate that the mother didn’t protect, and that she knew or should have known. After all, goes the thinking, she’s the mother and she’s living in the same home.

NOTE 1: CPS does have other options than to remove the child. In fact, federal and state law governing CPS requires that CPS pursue family preservation as well as child safety, and that CPS first make “reasonable efforts” to establish a service plan for the family to follow so the child can stay in the home, or return to the home.

But even if CPS is making a good faith effort to abide by these policies, it doesn’t alter the adversarial (oppositional) nature of the relationship with CPS in which the mother finds herself. Even if CPS has not taken the child and lays out a program for the mother to follow so the child can stay in the home, the mother knows full well what this means. ‘You do this program or we take your child’. The mother knows this doesn’t feel like help. It feels terrifying, hostile, and punitive. Especially so as her must-do-list is often hugely overwhelming since so many of the mothers are poor and acutely stressed. And even more hostile as the mother begins to see how prone the CPS exercise of power is to be arbitrary, prejudiced, and with shifting input and goals, the frequency of which is partly explained by the following.

4. At best, CPS/juvenile court Decisions are Made on the Lowest Judicial Standard of Evidence, the ‘Preponderance of the Evidence’ Standard, i.e. 51% of the Evidence. The void of evidence and rigor in the CPS/juvenile court system leaves the decision making process wide open to the virtually unchecked influence of mistakes, bias, discrimination, prejudice, vengeance, hearsay, junk science, nonsense, and arbitrariness of all kinds. (The one exception to this is that a final termination of parental rights usually requires a ‘clear and convincing’ standard of evidence, which is still a much lower standard than the ‘beyond a reasonable doubt’ standard of the criminal system.)

When CPS seeks to establish the abuse, remove a child for up to 18 months, establish mandated service plans, determine visitation, etc., CPS must go into juvenile court to get these decisions authorized by the court. At first this may seem to provide the kind of oversight on CPS decisions that would make the process just, equitable, and safe from abuses. But read on.

First, the body of law governing the CPS/juvenile court system is so vague and open ended that virtually any and all decisions made by these bodies falls within the scope of the laws.

Second, at best, CPS and juvenile courts makes these decisions based on the ‘preponderance of evidence’ standard. This is the lowest judicial standard of evidence. The preponderance of the evidence standard is 51% of the evidence. It’s sometimes called the ‘more likely than not’ standard. What this means is that all CPS needs to support a decision is evidence on their side, the CPS side, which is just a sliver more than the evidence on your side. This is a far cry from the ‘beyond a reasonable doubt’ standard criminal officials must establish before they can convict someone of a crime, even a misdemeanor.

Example of Preponderance of the Evidence: The mother tells CPS she didn’t know that the stepfather was sexually molesting the daughter because the stepfather always did it while she (the mother) was watching television in another room. The CPS worker tells the court that the fact the mother was in the same house watching television while the stepfather molested the child is a good indication that the mother should have known what the stepfather was doing. Given the sloppiness of the ‘preponderance of the evidence’ standard, all the judge has to do is lean ever so slightly to the social worker’s argument, and the judge can issue a finding that the mother ‘knew or should have known’, and then based on this finding grant the CPS petition to detain the child. Which is exactly what happened in this case.

Many lawyers themselves are so scornful of the flimsy evidence standard of the CPS system they call it “a crap shoot”, or the “anything goes” standard. The problem for the mother goes beyond the fact that CPS doesn’t need much evidence against her. It also means that whatever opinion a CPS worker may have of you, the worker can usually support that opinion in court simply by fishing through the extensive family details the worker has gathered and then selecting out the one or two tidbits that favor the opinion.

Add to this the huge initial mistake many women make of thinking of CPS as their advocate or friend or counselor. They pour their hearts out to the worker, giving the worker a whole ocean of intimate information in which to fish for evidence against them.

Yes, it’s true that with all this latitude, the CPS system can actually do things right and put its full resources into helping the mother and child to get safely on their feet together. And indeed, there are plenty of cases where this is exactly what happens. But there are a number of things that makes the system tend toward abusive responses. One of these is the cardinal truth of any power. Unchecked power always tends towards abuses of that power. And the power of CPS is hugely unchecked. And worse yet, as is discussed later, it is exercised in secret.

A second thing that tends the system toward abusive and prejudicial responses is the class of the mothers themselves, and the heaping social prejudices that already prevail against them. The mothers who come to the attention of CPS are most often poor, or immigrant, or minority race, and themselves are the direct or secondary victims of family violence. The harsh realities of their lives are chaotic, frantic, and generally incomprehensible to people who don’t live them. There is so much prejudice, stereotypes, ignorance, and blame against these women floating in society that the middle class social service system is primed from the start to blame these mothers, or at the very least, to believe it’s the mothers that need to be fixed.

NOTE 1: Lessons from the Native American Community. Prior to the passage of the federal Indian Child Welfare Act of 1978, child welfare/juvenile court systems were removing up to 25% of the children from many Indian tribes, then terminating Indian parental rights, and adopting the children out to non-Indian families. Non-Indian social workers and judges were using rampant prejudicial and racist notions to justify these removals. In particular, CPS/juvenile courts were judging many traditional Indian child rearing practices to be abusive, in and of themselves. Native American peoples’ were losing so many of their children to this process, many tribes labeled these child welfare policies as genocidal.

The Indian tribes crafted the Indian Child Welfare Act with the aim of stopping this systematic removal of their children. In so doing, the Indians keenly understood how the use of the ‘preponderance of evidence’ standard gave free reign to the prejudices, racism, and arbitrary factors that were being used to justify taking their children. They understood that the more oppressed a person is the more they need a high standard of evidence to protect them from governmental abuse. So, among other things, the Indian Child Welfare Act requires that CPS/juvenile courts must use the stricter ‘clear and convincing’ standard of evidence before the state can put an Indian child in temporary foster care, and must use the even stricter ‘beyond a reasonable doubt’ standard of evidence before the court can order termination of Indian parental rights. The act also requires that at any termination hearing, there must be expert witness testimony on Indian culture and child rearing.

We feel strongly that these same protections should be extended to all who come before CPS, since most all of these families are members of historically oppressed groups.

5. The Flimsy ‘Preponderance of the Evidence’ Standard is Bad Enough, But Things are Actually Much Worse. Increasingly, the CPS/juvenile court systems are handing off their fact finding and decision making responsibilities to mediators, evaluators, and even to CASA volunteers, all of whom operate on NO standard of evidence at all.

There’s no doubt that the juvenile courts have become increasingly stressed over the last few decades as victims of family violence have emerged to seek help for their plights. But instead of adding resources to properly meet the need, the CPS/juvenile court system, like the family court system, has handed off more and more of its fact finding and decision making responsibilities to a whole phalanx of psychologists, mediators, evaluators, and even to volunteers.

These are court janitors, really, brought aboard to mop up the judicial mess made by women and children who have found a way to make their needs and outrage heard. When a case becomes complicated or contentious, or is just more work than the judge wants to handle, the judge simply turns the case over to one of these evaluators to look into the case and come back to the judge with a set of recommendations. In nearly all cases, juvenile court judges blindly rubber stamp these recommendations with no further ado.

What is absolutely critical to understand is that once handed off to these evaluators, you have been ushered out the court’s back door, outside the rule of court law, and completely unprotected by rules of evidence. These evaluators operate under NO standard of evidence. NO rules of admissibility. NO legal protections at all. Hearsay, psychobabble, prejudice, lies, gossip, it all comes in. And it’s often all against you because the perpetrators are usually expert manipulators and liars, and, in addition, they have likely already poisoned the social relationships around you. This is why it’s the non-offending parent who most needs strict rules of evidence for protection, and is most hurt by their absence.

NOTE 1 – CASA Volunteers – But it gets even worse. Many juvenile courts across the country are now handing off official fact finding and decision making responsibilities in these cases to CASA volunteers, people who are only required to have 30 hours training. And the juvenile courts are usually assigning these volunteers to the most egregious and complex cases of child abuse.

The public has been thoroughly wooed to the feel good idea of having CASA volunteers to ‘protect the interests of the child’ in these cases. Indeed, there is great benefit for the child to be assigned a special person to talk to and even to advocate for the child through this process.

The whole CASA program would be just fine if it ended there. But juvenile courts routinely swear these volunteers in as official court fact finders (investigators), as representatives of the child’s stated interests, as representatives of the child’s best interests, and, as formulators of recommendations to the court as to the best disposition of the child. A recent national study, the Packard Foundation funded Caliber Study, finds that juvenile court judges adopt ALL the recommendations of the CASA volunteers in over 60% of cases.

This is a complete mockery and travesty of any and all notions of justice, and is particularly contemptful of mother’s and children’s rights. For so many reasons. But just for one, imagine if your surgeon sought out and took the recommendation of whether to amputate your leg from a volunteer with 30 hours training. You would be outraged! And you would never deal with this surgeon again. Yet this is exactly what juvenile court judges across the country are doing on the question of whether or not to remove the child from the mother, in the most complex and egregious of cases. They are turning over their fact finding, evaluation, and decision making responsibilities by swearing in persons with 30 hours training to act in any or all these official capacities.

The courts say they are doing this because they want to be sure to hear the children’s voices. But you only have to think for a moment to realize what the courts are really doing is avoiding the costs of a professional investigator, expert, or professional representation that is minimally needed to guarantee even minimal judicial standards for children.

And these courts have the nerve to accuse the mothers of failure to protect!

6. Both the Federal and State Welfare Law Governing the CPS/Juvenile court System are Full of Vague, Non-mandatory Language, a Fact Which Further Promotes the ‘Anything Goes’ Atmosphere of CPS Proceedings. In addition, these laws almost always refer to the parents as an undifferentiated single unit, “the parents’, a fact which puts a legal lock on viewing the non-offending parent with as much culpability as the abusive parent. Only recently has the legal language begun to recognize the existence of the ‘non-offending parent’ as separate or unique from the offending parent.

As you read through the federal and state law governing child protective services you can see features of the law that further help explain the frequent arbitrary and biased actions of these agencies. Here are just two.

Federal and state welfare law governing child protective services are vague, nonspecific, and use mostly non-mandatory language. For example, federal law ‘encourages’ child welfare agencies to provide their materials in languages other than English. It does not mandate that they do so. As such, many, if not most, non-English speaking mothers receive their CPS reports, their service plans, and notices in English only. Another example is that welfare law states a ‘preference’ for family reunification, and says social workers shall make ‘reasonable efforts’ to provide services that allow the family to stay together.

This kind of language in the law leaves so much wiggle room that virtually anything the system decides will fall within the law, a fact which further magnifies the difficulties for a non-offending parent trying to defend herself or appeal these decisions.

A second feature that runs throughout child welfare law is that it constantly refers to ‘the parents’ as an undifferentiated entity. There’s very infrequent distinction in child welfare law between the offending and non-offending parent. In fact, if you were an alien from outer space reading this law, it would be a while before it even dawned on you that “the parents” are two separate human beings. This dubious framework stems from the archaic patriarchal view of marriage of not very long ago that the two become one and the one is the man.

Naturally, this constant reference to “the parents” helps cement the system’s huge blind spot to a woman’s predicament when her partner is abusive. Clearly, the law can’t see her more as a victim of the abuser, if the legal language lumps her in with the abuser. If the father is a domestic violence perpetrator, the mother, too, is automatically “engaging in domestic violence”, which is precisely the language the system has used to justify taking the children from mothers who are victims of domestic violence. Legal recognition and distinctions between the offending and non-offending parent are coming at a snail’s pace.

7. The CPS/Juvenile Court System Operates in Secrecy Off the Public Record. This secrecy fans the flames of the system’s other tendencies to abuse.

The reason that CPS/Juvenile Court findings, proceedings, mandates, and actions take place off the public record is ostensibly to protect the privacy of the child and family in what is viewed as a private family matter. But one certainly must ask, who really has been more protected by this secrecy, the CPS system or the families it serves?

Nothing fans the flames of governmental abuse like governmental secrecy. Secret files, secret evidence, secret accusations, secret proceedings are a sure fire formula for allowing abuses to thrive and expand throughout the system. Since its inception, CPS/juvenile court activities have been off the public record with the exception of only a few states. The involved parents are informed. But, to date, neither the public nor any public watchdog has been allowed scrutiny or oversight of the handling of these cases.

Fortunately, it looks like there is the possibility this may change. In 2005, The National Council of Juvenile and Family Court Judges voted approval of presumptively open hearings with discretion of courts to close. This isn’t yet law, but it’s a big step in that direction. As part of the resolution the judges wrote the following,

“Open court proceedings will increase public awareness of the critical problems faced by juvenile and family courts and by child welfare agencies in matters involving child protection, may enhance accountability in the conduct of these proceedings by lifting the veil of secrecy which surrounds them, and may ultimately increase public confidence in the work of the judges of the nation’s juvenile and family courts.”

We would probably word this a little differently, ‘Open court proceedings will increase public awareness of the critical problems faced by children and non-offending parents in matters involving child protection,…..’

8. Most all CPS/juvenile court Systems deal ONLY with Intra familial Child Abuse. This schism between the way society deals with child abuse perpetrated by a family member versus child abuse perpetrated by an ‘outsider’ points out a staggering hypocrisy in the rhetoric about treating child abuse seriously. Behind the rhetoric is a child welfare and police system that in reality works hand in hand to let most child abusers walk free.

Many people are very surprised when they call CPS to report a child abuse case perpetrated by a neighbor, a priest, a stranger, or by any one outside the family. CPS tells the caller they don’t handle these cases. They only respond to cases in which the perpetrator is a family member. So in most cases in which the perpetrator is not a family member, CPS tells the caller they’ll need to report to police.

Another thing that may surprise you is that if you call police to report a case of child abuse perpetrated by a family member, police will often tell you should report the case to CPS. Granted police could take the report if they wanted to, and they should take the report. But police themselves are all too often on the same philosophical page as CPS. They too often believe that when fathers ‘grow their own victim’, the fathers shouldn’t be held accountable like other offenders.

And another thing. Even if police do take a report of sexual abuse perpetrated by a family member, chances are very good that the perpetrator, even if convicted, will get off lightly compared to an outside-the-family perpetrator. California law, like the law in many states, maintains gaping legal loopholes where, prosecutors can, and frequently do, charge intra familial child sex abuse under different codes which allow the family offenders much lighter sentences. In addition, the law allows convicted intra familial child sex offenders to be given probation, different from outsider child sex offenders who must go to prison. And the law allows convicted intra familial child sex offenders to stay off the state’s public registered sex offenders lists, also unlike ‘outside’. (For a good discussion of the legal loopholes for fathers and other family members who sexually molest their children see Child Sexual Abuse and the State by Ruby Andrew at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=904100)

There isn’t a civic leader out there that doesn’t publicly rage to the heavens about what monsters child molesters are, and how these ‘animals’ should be strung up at the crack of dawn. But, remember, the overwhelming majority of all child sex abuse is perpetrated by family members. What this means is that, in reality, we have a system that publicly beats its chest over the small percentage of child molesters who attack someone else’s child, while by legal slight of hand that same system lets the vast majority of child molesters go free. Not by accident, but by legal and institutional design. What’s perhaps most telling is that, at least in California, these legal loopholes for intra familial perpetrators have been widened over recent years, rather than tightened.

Or to put it another way, the more women and children have made demands on the system to stop family violence, the more the system has created ways to look good while paving the perpetrator’s escape. The patriarchy with all its bluff and bluster to the contrary, still supports the notion that a man’s home is his castle, and that his children are his to do with as he pleases. Unfortunately, CPS, with its hold-no-perpetrators-accountable system, is a vital part of the machinery for perpetuating these archaic and oppressive beliefs.

To Part 2

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Copyright © Marie De Santis,
Women’s Justice Center,

Case Work Falsified Report Child Died in Foster Care


Community remembers youth slain in foster care
By Charlene Muhammad
Updated Jun 22, 2004 – 12:08:00 PM
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Debra Reid (3rd left) announces Day of Mourning events in front of the Los Angeles Department of Children and Family Services Office June 9. The day marked the 7th anniversary of the death of her 9-year-old son Jonathan who was killed while in foster care. Photo: Charlend Muhammad
LOS ANGELES (FinalCall.com) – June 9, 2004 was the first day in seven years that Debra Reid placed a tombstone on the grave of her asthmatic son, Jonathan. He was taken away from her in 1997 at 9 years of age and placed in a foster home because a social worker falsified a court case document. During that time, he was overmedicated and died.
Ms. Reid plummeted into mourning with a purpose and founded the Jonathan Reid Family Rights Coalition, a non-legal support service for families involved in the dependency court system. She also established June 9 as a Day of Mourning for all children who died while in the care of the Department of Children and Family Services (DCFS).

“It’s been seven years since his death in a foster care home, but for my family, the pain resides as if he had passed yesterday,” Ms. Reid stated.

At a press conference that same day, she commemorated the young lives, announcing her push for a bill in California that would require mandatory sentencing for the filing of false documentation into court records that result in the injury or death of a child under the care of DCFS.

A similar bill, HR 71E, was adopted in the Florida House in 2002, and carries a third-degree felony sentence.

Later that evening, the community joined the Reid family in a song and prayer vigil at Faith United Methodist Church. They viewed a videotaped history of Jonathan’s life, and Ms. Reid’s struggle for justice, wherein she filed a million-dollar civil lawsuit against Los Angeles County and the treating physician, which included the removal of the civil immunity of DCFS social workers under Government Code 820.21, Ms. Reid said.

But the settlement that they awarded the family was not sufficient justice. “We sought true justice and we have not received it. All we received was a payoff and we’re not satisfied with a payoff,” Ms. Reid charged.

“I believe that within our community, we should be able to culturally put our children with our religious centers, social centers, and have social workers set up an alternative program where these types of things are not happening,” stated Min. Tony Muhammad, Nation of Islam Western Regional Representative.

Educator and journalist Kaia Niambi Shivers works with foster youth and adults who have been emancipated from the foster care system. She pointed out that the foster care system is laden with bureaucracy.

“It’s not just the social worker—that’s just one person. You have judges, police officers, psychologists, even court appointed attorneys—a whole circle of people who basically block the parent from some sort of healthy, intimate relationship with their child,” she stated.

And regardless of the child’s background, she continued, being ripped from a mother’s arms renders a type of psychological trauma that the victims live with every day. She cautioned that it is no rhetoric or conspiracy theory that there is a disproportionate number of Black youth in foster care.

According to a 2003 Child Welfare League of America report, entitled “Children of Color in the Child Welfare System,” for every 1,000 Black children in the U.S. population, 21 were in foster care on September 30, 2000, whereas for every 1,000 White children, five were in foster care. While Blacks were 15 percent of the total population under the age 18, they were 40 percent of the foster care population. Whites under the age of 18 registered at 61 percent of the total population, yet 38 percent of the foster care population, the document continued.

A DCFS spokesperson, who requested anonymity, stated that the number of children in the care of DCFS dropped from 60,000 in 2001 to 45,000 in 2003, with a total of seven who have died within the last three years. Whenever a child is lost, it is a tragedy, he stated.
When these fatalities occur under the cover of unjust reporting and removals, the pain is worsened, Ms. Reid stated.

She has lost track of how many children the coalition has helped reunite with their families—not magically, she stated, but through hearings that parents hardly know exist.

“We hit them with their own laws, but the problem is that parents do not know their rights, and their court-appointed attorneys do not inform them, because the system could become liable, and that is their bread and butter,” she explained.

The coalition has created an informative pamphlet that outlines the language, structure and procedures of the dependency court system.

However, according to Allan Parachini, public information officer for the Los Angeles Juvenile Dependency Court, the court is not a county agency and does not employ the attorneys. He said it is hard to believe that, given the court’s quality of leadership, inadequate representation occurs.

Ms. Reid said that the Day of Mourning was especially poignant for her, because it came in the wake of the federal government’s reporting that the state’s child welfare system could lose nearly $18 million in funding for its failure to abide by measures regulating the well-being of children in its system.

(The Jonathan Reid Family Rights Coalition may be contacted at (310) 515-7686.)

This Child Died in Foster Care

Gresham child died while in foster care
Neighbor says foster mom ‘is a good person’
By Mara Stine

The Gresham Outlook, Sep 5, 2006, Updated Sep 5, 2006

A pair of bright pink “Dora the Explorer” sandals sits next to the front door of a cheerfully painted duplex in Gresham’s Asert neighborhood.

It’s the foster home of a 2-year-old toddler who died of internal injuries Monday, Sept. 4. Police are treating her death as a homicide.

Officials from Legacy Mount Hood Medical Center called police at 3 p.m. to report the suspicious death of a child who lived at 245 S.E. Vista Ave., said Sgt. Teddi Anderson, Gresham police spokeswoman. Due to the toddler’s young age and unexplained cause of death, detectives from Multnomah County’s Child Abuse Team and Major Crimes Team are investigating.

The Department of Human Services, which oversees the Children, Adults and Families Division responsible for administering child protective services including foster care, also is investigating, said Patricia Feeny, spokeswoman.

Few details are being released due to the ongoing investigation. Police can’t comment on how or where the child was injured, whether she was dead when she arrived at the hospital, whether her body showed signs of abuse, whether the child had a history of being abused or who she was living with.

The toddler has siblings, but Feeny couldn’t comment on whether they were in the same foster home or if they had been removed. Feeny did say, “No children are in the home currently.”

Feeny also said it’s “extraordinarily rare” for children to be killed while in foster care. But when it does happen, “nothing prepares you for such a tragic loss,” she said.

Karen Rodregez, a mother of three who lives in the adjacent duplex, can hardly believe the little girl who played with her own children was killed.

“It’s shocking,” she said, standing outside her front door just steps from her neighbors’ door. “I just cried all night.’
The foster parents moved into the duplex about eight months ago from California with their two birth children. They also had two foster children – half-sisters, ages 2 and about 3, Rodregez said.

Both girls came from another foster home. Although the youngest girl still visited the former foster home, her older sister didn’t want to and preferred to remain at her new foster home, Rodregez said. The youngest girl, however, recently returned from a vacation with the previous foster parents, she added.

Rodregez said she doesn’t know what to think of the girl’s death or what caused it. She can’t imagine her neighbors being capable of hurting a child of any age.

“I hope it’s not her, I know she’s a good person,” she said of the child’s foster mother.

The foster mother sometimes baby sat Rodregez’s three boys, ages 7, 5, and 5 months, who loved playing with the girls next door.

“She always takes care of my kids very good,” Rodregez said, adding that her baby would smile when he’d see the woman next door.

Now, she worries that something may have happened to her own children.

“I ask them, ‘Did they ever hurt you, shake the baby?’ and they said no,” Rodregez said. But she’s careful not to ask too much for fear of scaring her children.

For now they just know that the little girl next door went to the hospital. There was an emergency.

“Maybe God took her with him,” she tells them.

How Safe Are They? Not Safe At All!

How Safe the Service? During a recent two-year period, one foster child died on average every seven and a half weeks in the state of Arizona. Four of them were reported as having been “viciously beaten to death” by their foster parents (Jacoby, 1995). Among the deaths in Arizona was that of China Marie Davis, of Phoenix. An autopsy revealed that over her 11 months in the care of her foster mother, Dorothy Jean Livingston, China Marie suffered a compression fracture of the spine, breaks in both forearms and wrists, two broken collarbones, fractures of both thighs, and a broken left arm, right rib and left hand. China Marie finally found her relief in death, after Livingston repeatedly kicked her down a staircase because she refused to clap her hands to gospel music (Harker, 1997). Among the deaths was that of Tajuana Davidson, also of Phoenix. While in foster care the three-year-old suffered a broken shoulder blade, a black eye, and bruises on her stomach, back, legs and arms. But it was the “seven crushing blows to the head” that finally killed her (Wexler, 1995, p. 315). “The state’s foster care system has been racked by tragedy in recent years,” reports the Boston Globe. “In the past three years, several foster children have been murdered or have died from neglect, while others have been horrifically abused” (Murphy & Vaillancourt, 1996). In 1995, at least eight children died while in foster care in Massachusetts, and federal officials were threatening a private lawsuit against the agency if changes weren’t made (MacQuarrie, 1996). But the most telling statistic of all may be that of the seven deaths directly attributable to child maltreatment in Massachusetts in 1995, three of them-nearly half-were in foster care (Grunwald, 1996). Determining the actual incidence and prevalence of child abuse, neglect and fatalities in foster care is problematic given child protection agencies’ apparent unwillingness to investigate or document such cases. In California, for example, the Department’s legal division discovered a “secret room” in the Los Angeles Department containing 15 fling cabinets holding approximately 3,000 case files on foster care facilities that had problems which were not reported to the state. In one case, 10 foster children slept on the floor of a garage, while 10 more were crammed into an upstairs bedroom. Three had been abused, one with a fractured skull and two broken limbs. Yet the home was not closed until months after the conditions were discovered (Little Hoover Commission, 1992). Child welfare departments are rarely forthcoming with information about the actual extent of harm that comes to children in their care. It is largely through audits and casereadings associated with legal actions that the actual extent of the abuses in the foster care system come to light. The reasons for this may not be as complex as they are made to appear. Child welfare officials who have managed to entrench themselves in lifetime civil service positions in the more desirable nooks and crannies of the child welfare system have a vested interest to protect, and those who run public bureaucracies have devised their own “rationalized myths” to protect their interests, argues John Hagedorn (1995). The myths of “doing good” benefit those who are advantaged by existing institutional arrangements. Even as politicians are constantly criticizing “bureaucracy” and “bureaucrats,” they approve millions of dollars worth of public funds to keep the bureaucracies running. As Hagedorn explains: “It’s simply too risky for bureaucrats to admit that their agency may not be ‘doing good.’ The erosion of that myth may lead someone to investigate them or even propose cutting their budgets” (p. 99). In Florida, caseworkers in the Florida Department of Health and Rehabilitative Services reportedly run files relating to a botched investigation through a paper shredder. “Documents were being altered, shredded,” testified a former HRS employee who watched the destruction of the documents. “It went on and on and on . . . It was nothing but a cover-up” (Mathers, 1996). In Oklahoma, an agency administrator dismissed two agency employees accused of the sexual abuse of foster children without so much as a blot on their records (Trammell & Clay, 1992). In Illinois, we find a report of systemwide abuses at the Columbus-Maryville emergency shelter suppressed by Cook County Public Guardian Patrick Murphy (Golden, 1997). In New York City, a caseworker indicated as unfounded the repeated rapes of a young girl in institutional care, notwithstanding the testimony of credible witnesses. One such case involved a young girl who was repeatedly raped by other children at the St. Joseph’s Children’s Services Agency. A 1993 report prepared by New York State Senator Franz S. Leichter (Skrak, 1993) explains: One of the cases this office claimed to be unable to substantiate involved a seven-year-old girl who was apparently repeatedly raped last year by other children at St. Joseph’s Children’s Services Agency in Brooklyn. When deposed in a lawsuit brought by the little girl’s mother, the DSS investigator testified that boys at the facility had told her about their sexual contact with the girl, staff members had admitted witnessing the abuse, and one staff member had admitted engaging in sexually provocative behavior with the girl. In addition, medical evidence which the investigator failed to request confirmed that the little girl had been raped since she arrived since she arrived at St. Joseph’s. Nevertheless, the DSS investigator’s official finding in the case was that there was “no credible evidence” of child abuse or staff neglect. Outspoken veteran Juvenile Court Justice Judy Sheindlin (1996) attributes much of the problem to confidentiality laws. “The only people being protected here are caseworkers and other officials, who regularly hide behind a wall of secrecy,” she writes. Sheindlin notes that dozens of New York City cases where children have been maimed or murdered never reach public attention, and it is not just because they are poor minority children. Rather it is “because of confidentiality rules, which protect inept bureaucrats and a faltering social services system” (pp. 200-201). “In the name of protecting children, we have kept it a secret how we as a society deal with our most vulnerable children,” explained American Civil Liberties Union attorney Eric S. Maxwell to the Massachusetts Senate Committee on Post-Audit and Oversight. “There is a great gap between protecting a child’s identity and keeping the process and acts of our government secret” (Murphy, 1995). “Foster care systems are cloaked in secrecy that often is used to conceal illegal and unconscionable practices,” observed Children’s Rights attorney Marcia Robinson Lowry during Congressional hearings. “Every state in the country cloaks its foster care system in secrecy, prohibiting the disclosure of any information about children’s experiences in foster care. Though these statutes often were enacted to protect children, they routinely are used by state officials to conceal illegal and unconscionable practices” (Committee on Ways and Means, 1995). Indeed, confidentiality laws serve the system well, if the figures from the state of Georgia are to be taken as an indication. Nancy Schaefer, twice a gubernatorial candidate for governor, has repeatedly called for a fundamental restructuring of the state’s foster care system, including the dismantling of the Georgia Department of Family and Children Services. Schaefer charges that an astounding 433 children have died while in state care over the last several years (Thompson, 1997). “Words cannot describe the travesty of justice suffered by these children who, rather than receiving the protection of the state, gave their lives in a most horrible and painful death because of a failed and unaccountable system of administration,” said Schaefer to Macon Telegraph reporters. Some sense of the dimension of the problem is to be obtained from the accounts of those who sit on the bench in the juvenile court. “Many kindly couples have given love, guidance, and homes to strange children,” writes former Philadelphia Judge Lois Lorer (1991). The reality of the courtroom, as she explains, differs markedly from the idealized image of foster care: In court we see countless children who have been abused by their foster parents. Some have been killed. We see troubled children who have been rejected by one foster parent after another and have been moved from home to home, from school to school every few months. I have seen in criminal court foster mothers who have cheated and stolen and engaged in prostitution. I have seen foster fathers with serious criminal records who have beaten their foster children and introduced them to lives of crime (Lorer, p. 193). Lorer is sympathetic to the view expressed by Judge Daniel D. Leddy, of New York Family Court, who she cites as having told the New York Times: “It’s gotten to the point where we’re sending kids home to bad circumstances because foster care is such a terrible alternative.” When Judge Leonard Edwards first sat on the bench in Santa Clara, California, he routinely ordered children to remain in the children’s shelter while social workers completed reports. This practice, intended to show parents how serious the proceedings were, stopped when he visited a shelter himself, finding children exhibiting signs of shock: “I realized then that removal from a parent is a terrible event for a child,” he explains. “They found themselves in a new world of strangers, and they had the terrible fears of not knowing where their parents and brothers and sisters and other loved ones might be. I regularly come across children who have been removed for a weekend and then return home to suffer from months of nightmares. They refuse to be out of the presence of their mothers” Indeed, Judge Edwards has himself presided over cases in which children had been raped, beaten, starved and badly neglected in foster homes (Hubner & Wolfson, 1996, pp. 72-73). “We have to ask ourselves whether we’re doing children a service by taking them out of their homes and placing them in a system that’s just as unable to meet their needs,” says District Judge Bill Jones of Charlotte, North Carolina. “Are we doing them more harm than good?” Says District Judge Deborah Burgin of Rutherfordton, North Carolina: “If you take on the responsibility to take care of someone-and are paid to take care of someone-the least we can ask is that they come out of it alive” (Williams, 1994). Notes former Juvenile Court Judge Judy Sheindlin (1996, p. 111): Every year in every a state a commission meets to attempt to identify the scores of children killed and maimed while in foster care. And each year a report is published with suggestions for legislative and systemic change. Although the number of victims is increasing, there has been no nationwide overhaul of the systems that permit these in-house tragedies to occur. There is no shortage of such reports. A blistering 280-page report issued by the 1993 Massachusetts Governor’s Special Commission on Foster Care recommended abolishing the civil service system used by the Department of Social Services in the hiring and promotion of workers, finding the agency to be on the verge of organizational collapse, with management and leadership failures having left the department virtually paralyzed. As a result, the Commission said, the Department is unable to effectively serve the needs of children and families and many children, while in the care of the department, suffer continued and repeated abuse and neglect. The Commission called for a complete restructuring of the agency, saying that without an overhaul, any other recommended changes will be nearly impossible to undertake. “This commission is asking for nothing less than a serious reformulation of the objectives of the state’s child protection and child welfare systems,” said Dr. Eli Newberger, a Commission member and director of family development programs at Children’s Hospital (Benning & Ribadeneira, 1993). Two years later, after a five-month investigation based on hundreds of interviews with Department of Social Services workers, court personnel and families, a legislative committee found that children in state care were often worse off than they were in the original homes from which they were removed (Lakshmanan, 1995). From New Jersey comes a 270-page report issued by a panel of 26 experts appointed by the Governor-one which makes hundreds of recommendations for revamping the state’s failed child protection system. Among the panel’s findings was that children alleged to have been abused or neglected are abused once again-by the very system intended to help them. The report followed on the heels of another scathing report issued by the Association for Children, in which 75% of the 772 respondents-among them police officers, foster parents, caseworkers and other individuals involved with the system-rated the agency’s performance as inadequate, ultimately forcing the agency’s director, Patricia Balasco-Barr, to resign (Parello, 1998). Two California Grand Juries report: “Professionals working in the field of child abuse voiced strong concerns that the children removed from abusive homes were being abused again by a system designed to protect them” (San Diego Grand Jury, 1991, cf. San Diego Grand Jury, 1989). A Santa Clara County Grand Jury (1993) would reach a similar conclusion: “Sometimes, foster care placements are made that are just as abusive, if not more so, than the home from which the child was removed. The Grand Jury learned of placements where sexual and physical abuse took place. There was even a case where the infant died.” From Washington State, a blue-ribbon task force concludes: “The effect of our present foster care system is disastrous. Children are moved from one foster home to another, their school attendance is disrupted and health care needs often go unmet. They are sometimes exposed to abuse by other children in care” (Governor’s Task Force on Foster Care, 1989). The California-based Little Hoover Commission, in examining the functioning of the foster care system determined: “That children can come to harm-and even die-while supposedly under the protection of foster care is not in dispute.” Some cases cited by the Commission included a foster mother arrested in Los Angeles on charges of beating to death her 23-month-old foster son, allegedly over toilet training problems; a Los Angeles woman arrested for the attempted murder of a 19-month-old foster child who she said fell from a jungle gym-doctors believed the severe head injuries, which may result in blindness, could only have come from abuse; and a Sacramento woman who was injured in a car accident who voluntarily placed her daughter in a foster care facility. During a tantrum by the child, an employee of the facility wrapped her in a blanket and squatted on her. She was later discovered dead. On a national perspective, a recent Time Magazine article (Van Biema, 1994) references a troubling report commissioned by the Reagan Administration in the late 1980s, which concluded: “Foster care is intended to protect children from neglect and abuse at the hands of parents and other family members, yet all too often it becomes an equally cruel form of neglect and abuse by the state.” The Associated Press (Bayles, 1995) reports on a 1994 Department of Health and Human Services audit conducted in six states which found foster homes that were crowded and unsafe. The report illustrates that cases of foster parents inflicting harm on their wards is anything but uncommon: A Sacramento, Calif., man was charged last December with raping and murdering one of his three foster children, a 16-year-old girl. He was arrested after holding the other two children at gunpoint during a standoff with police. The Cook County public guardian’s office recently sued a Chicago private social agency for placing an 11-year-old girl in the home of a convicted rapist who allegedly raped the child. In a separate case, Chicago police say 2-year-old Corese Goldman was killed in February by a foster mother who held him under a faucet to toilet-train him. The woman, a distant relative, was not required to go through training, background checks and a home inspection before taking the child. Abuse and neglect of children in out-of-home care are common (Spencer & Knudsen, 1992). Yet even for those children fortunate enough to enjoy an environment free of overt physical abuse or neglect, conditions vary tremendously, often putting children at genuine risk of harm from other environmental factors. A report by the Office of Inspector General of the U.S. Department of Health and Human Services (1995b) determined that the Texas Department of Protective and Regulatory Services “has no assurance that the quality of care being given to foster children placed by child-placing agencies was adequate.” Federal reviewers found “many cases” of children “in potentially harmful situations.” At least one fire or health deficiency was found at 40 of the 48 homes reviewed. In 28 of the 48 homes, no record could be found to prove that required criminal background checks had been made. The report continues, noting that conditions endured by many foster children are far from the ideal: For 19 of the 43 foster homes visited, the home and/or neighborhood environment appeared to put the safety of the foster children at risk. Neighborhood homes were boarded-up and the yards were overgrown with tall grass and cluttered with debris. Some of the foster home yards were cluttered with old tractors, lawn mowers, and cars. The foster homes were also cluttered with wastepaper, clothes, and debris. Foster children were living in three homes identified by the child placing agency as being located in high crime areas and drug environments. During our visit to one of these homes, the foster parent explained there had been a shooting behind her house the night before. For another home, the case file showed that the neighbors to the foster home were drug dealers and the foster child associated with them. No action was taken to move the children from these surroundings to a safer environment. A subsequent review (Office of Inspector General, U.S. Department of Health and Human Services, 1996) provides insight into some of the dynamics underlying these failures. In auditing a number of private child placing agencies, it was found that the agencies retained 38% of the Title IV-E maintenance payments intended to benefit foster children, diverting the funds instead to pay for such services as “costs of operations, case management, therapy, counseling, respite care, psychiatrists, training, transportation, day care assistance, medical needs not covered by Medicaid, recreation, and other administrative costs.” Money intended to benefit children was routinely appropriated to other programs, auditors found, and not only did the amounts in question total into the millions, but the problems identified were pervasive, affecting the majority of children among the sample group: For example, for a child entitled to a daily maintenance payment of $36.65, one placement agency provided only $10.00 to the foster home. The difference of $26.65 was retained by the child placing agency. In another example, a child placing agency was paying its foster care homes $26.00 a day for children who were entitled to a maintenance payment of $67.10 a day. The agency was keeping the difference of $41.10 for non-maintenance costs. Eight of the nine child placing agencies reviewed consistently paid their foster homes less than the maintenance payment they received from the State agency. Of the 441 children included in this review, a portion of the maintenance payment for 424 of these children was retained for non-maintenance purposes. One of the most comprehensive surveys of abuse in foster care was conducted in conjunction with a Baltimore lawsuit, L.J. v. Massinga. In her analysis, Trudy Festinger, head of the Department of Research at the New York University School of Social Work, determined that over 28% of the children in state care had been abused while in the system. Reviewed cases depicted “a pattern of physical, sexual, and emotional abuses” inflicted upon children in the custody of the Baltimore Department. Additional cases reviewed as the trial progressed revealed children who had suffered continuous sexual and physical abuse or neglect in foster homes known to be inadequate by the Department. These included cases of sexual abuse of young girls by their foster fathers, and one of a young girl who contracted gonorrhea of the throat as a result of sexual abuse in a unlicensed foster home. In Missouri, a 1981 study found that 57% of the sample children were placed in foster care settings that put them “at the very least at a high risk of abuse or neglect” (Kaplovitz & Genevie, 1981). Lowry describes the findings of a subsequent review: “The most troubling result of the Kansas City review was the level of abuse, undetected or unreported, in foster homes. Twenty-five percent of the children in the sample were the subject of abuse or inappropriate punishment. Eighty-eight percent of those reports were not properly investigated” (Subcommittee on Public Assistance and Unemployment Compensation and the Select Committee on Children, Youth and Families, 1988). In Louisiana, a study conducted in conjunction with the Del A. v. Edwards civil action found that 21% of abuse or neglect cases involved foster homes (Stein, 1988). In another Louisiana action, one in which thousands of pages of evidence were reviewed, and extensive testimony and depositions were taken, it was discovered that hundreds of foster children had been shipped out of the state to Texas. Stephen Berzon of the Children’s Defense Fund summarized the findings of the court before a Congressional subcommittee, explaining that “children were physically abused, handcuffed, beaten, chained, and tied up, kept in cages, and overdrugged with psychotropic medication for institutional convenience” (Subcommittee on Select Education, 1976). To provide the committee a favor of what these children were suffering, Berzon ended his testimony by quoting extensively from a report prepared by the Louisiana Welfare Department, which itself investigated out-of-state facilities: There are telling signs that these children in general are far from being fulfilled. The yearning for home-or whatever they conceive of as their home-is ever present in all of them. This feeling came through poignantly as I talked to some of the children. Their tone and wistfulness left me with the feeling that they are “serving time” away from home and for reasons they perhaps do not understand nor fully accept. Some accept their plight passively, others simply run away. Incidents of runaway seem especially high among the adolescent group. Our first visit was undoubtedly very meaningful to the children with whom we were able to talk. That they may not have ever seen us before did not matter. The simple knowledge that we were from Louisiana was instantly soothing for them, for we were a tangible and personal link with home. They seemed to swarm around us (even those not from Louisiana) as though to consume us. We were someone to whom they could ask questions about home. They invariably did ask about home. “Did we know the name of their home town? Their address? . . . or even, Did we know the name of their street? How long would they have to remain here? Would we come back to see them? Would we tell acquaintances hello?” etc. It was almost a desperate plea for assurance that “home” still exists for them. If these children told us anything at all, it is that they are not where they are, away from home, by simple preference. As Children’s Rights attorney Marcia Robinson Lowry explains, physical abuse is only the tip of the iceberg on which foster children are cast adrift: “There are a lot of injuries, a lot of abuse. The most significant thing is the psychological death of so many of these kids. Kids are being destroyed every day, destroyed by a government-funded system set out to help them” (Ambrose, 1994).

Toddler Dies While Foster Parents Party

Toddler drowned in pool as her foster parents partied

A toddler who had been taken into care died after being found floating in her foster parents’ swimming pool.
Anna Hider, 17 months, was discovered unconscious in the water by the couple at their home in Hampshire on Sunday evening.

She was taken to the Queen Alexandra Hospital in nearby Portsmouth, but was pronounced dead an hour later.

Last night, Anna’s devastated parents blamed the decision to take their daughter into care for her death.

It is believed the foster family were entertaining guests at a party at the house when the tragedy unfolded.

The case again throws the spotlight on to the care system and the apparent ease with which children can be taken from their birth parents.

It is less than a week since a Daily Mail special report outlined how dozens of children are allegedly being taken from their parents to be placed for adoption, often on the back of the flimsiest of allegations and, at times, mere hearsay.

Anna, her seven-year-old sister, and her 13-year-old brother were taken into care last year. The girls had been placed with separate foster families while the boy has been living in a care home.

Last night, their mother, Emma Hider, told the Mail how she had been fighting for Anna’s return when she died.

Mrs Hider, 31, from Paulsgrove in Portsmouth, said: “I got a phone call last night saying that Anna was in hospital.

‘The next thing I knew, she was dead. They told me over the phone as I was on my way into the hospital.

“I’m angry and I want the truth. I want to know how my beloved daughter ended up face down in someone’s swimming pool. I just cannot understand how she is dead.”

Anna had been made the subject of an interim care order, which precedes a full care order and gives local authorities the power to share or take full parental responsibility for a child or children.

Mrs Hider, who is unemployed, said she was allowed to see Anna every weekday and spoke to her on the phone at weekends. She added that she never missed a visit.

She described how Anna “loved animals” and was “always laughing and interested in the world around her”.

Mrs Hider went on: “I want everyone to know what social services are like. If Anna was still in my care she would be alive now.”

She said social services had not allowed her to break the news to her other two children, who have different fathers.

Anna’s father, Clyde Massiah, 45, had split up with Mrs Hider and lives in Oswestry in Shropshire.

Mr Massiah, also unemployed, said he believed the foster family were entertaining guests at a party when Anna woke up and walked downstairs to the swimming room.

He added: “They [the foster parents] have got plenty of money – and caring is supposed to be their job.”

The couple refused to discuss the circumstances surrounding their children being taken into care.

But a neighbour told the Mail the children were taken away last summer, after concerns were raised at the school of one of the older children.

A spokesman for Portsmouth City Council, which is responsible for adoption in the city, refused to comment on Anna’s care history, or what led her to be taken from her mother.

But councillor Gerald Vernon-Jackson, the leader of the council, offered “sincere condolences” to Anna’s family.

He added: “In Portsmouth, we make every effort to keep children with their natural parents-Care proceedings are taken only when there’s strong evidence that these are in the child’s best interests.”

The Mail has repeatedly highlighted the secrecy surrounding care and adoption proceedings. Parents have had their children taken away after being judged not “clever” enough to raise them, or even because of financial hardship.

This month the Mail also revealed how some councils are being offered bonuses worth as much as £2million over three years if they meet targets to raise the number of adoptions by 50 per cent.

Since the article around 100 readers have contacted us saying their children had been taken without good reason.

Labour’s adoption targets were intended to lift more older children out of care.

But critics say councils, encouraged by the promise of extra cash, have merely earmarked those children who were easiest to place in adoptive homes – babies and toddlers – while the older children remained in care. In the year to March 2006, there were 3,700 adoptions from care in England.

Across the UK, there are around 5,000 children waiting for adoption, and 80,000 in the care of local authorities – two thirds of whom will be placed with foster parents.

A spokesman for Hampshire Police said initial investigations into Anna’s death suggested a “tragic accident”.

A post-mortem will be conducted and an inquest has been opened and adjourned.

Child in foster care dies after being found in swimming pool

A 17-month-old girl has died after being found floating in a swimming pool while in the care of her foster parents. Anna Hider was found unconscious in the garden pool at their home in Havant, Hampshire, on Sunday evening.

A police spokeswoman said attempts were made to resuscitate the child after she was found shortly before 9pm. Paramedics took over when they arrived and she was taken to Queen Alexandra hospital, Portsmouth, where she died an hour later.Police said yesterday the death was being treated as an accident and there were no suspicious circumstances, but they were investigating the circumstances on behalf of the coroner. A postmortem examination will take place.

The child’s mother, Emma Hider, 31, said yesterday that she had been negotiating with Portsmouth social services for a year to regain custody of her daughter, who was placed in care last summer.

“I thought she was going to be safe and now I am going to have to bury my daughter. I am so angry and I want to know the truth,” she said. “I want to know how my beloved daughter ended up face down in someone’s swimming pool. I just cannot understand how she is dead.

“Anna should never have been taken off me. If she was still in my care she would still be alive.

“She was a beautiful little angel with a love for life. I just remember her with a big smile on her face – she was always laughing and loved animals.”

Ms Hider has two other children who are in foster care.

Anna’s father, Clyde Massiah, 45, said: “I want some answers about what happened to Anna. How she can be in care of social services and end up dying? I feel we have been let down by them.

“I have not even been spoken to by them and I am the father.”

Police have decided not to release the address where the child died.

“Due to the sensitive nature of this inquiry and the sensitive circumstances surrounding it we will not be releasing the address of where this occurred,” a police spokeswoman said. “It’s not in the public interest to release the information. It would do more harm than good.”

Portsmouth city council said the authority would carry out a review into what had happened.

“We offer our sincere condolences to the family of the child who tragically died yesterday,” council leader Gerald Vernon-Jackson said in a statement.

“The child was the subject of an interim care order. We are offering every support possible to all those who have been affected by this.

“We are liaising closely with the police, who are investigating the full circumstances of this tragic incident.

“We understand that there will be an inquest and the city council will also carry out our own review of the circumstances.”

Lee Glendinning
Tuesday July 31, 2007
The Guardian

Mother may sue over baby who drowned in foster care
The mother of a toddler who drowned in a swimming pool while in foster care may take legal action over the tragedy.

Anna Hider, 17 months, was found unconscious in her foster parents’ pool at their home in Hampshire on Sunday evening during a ‘family get-together’.

She was taken to Portsmouth’s Queen Alexandra Hospital, but died an hour later. Police are investigating the circumstances of the death.

Anna’s biological mother, Emma Hider, 31, said yesterday she was consulting lawyers, explaining: “I feel really angry. I want justice done. I want to know what, where, why and how.”

Speaking at her flat in Havant, Miss Hider said she had been ‘very close’ to getting Anna back from Portsmouth Council’s social services department, whom she accused of “mucking her around”.

Of Anna’s foster mother, who cannot be named for legal reasons, Miss Hider said: “I’m not trying to say she’s a bad foster carer. I want her to go to the funeral because if she doesn’t, it’s just going to eat her up.

“She brought my daughter up for the last year. She was getting her dressed, putting her to bed.

“In a way I hate her but in a way she still needs to say goodbye.

“She has a heart of gold. She must be going through hell at the moment just like I am. But why wasn’t that pool covered? Why wasn’t she being supervised?

“When you’re a foster parent you have to have eyes in the back of your head.

“They’ve got to take even more special care. They get paid loads a week to look after that child.”

Anna’s biological father, fairground worker Clyde Massiah, 45, said: “All we have is memories now until we lay her to rest. Emma went straight away to see about getting a tattoo done in memory of the little one.”

Of her plans for the “perfect funeral”, Miss Hider – whose other children, aged seven and 13, are also in care – said: “I want a glass coach and horses. I want everyone to wear bright colours.

“Anna never wore black so why should anyone else?”

They Erred on the Side of The Child and wound up killing them

National Coalition for Child Protection Reform / 53 Skyhill Road (Suite 202) / Alexandria, Va., 22314 / info@nccpr.org / http://www.nccpr.org


Opponents of family preservation have a lot of great applause lines. They are for “child protection,” they say. They are for “children’s rights,” they say. They are for “putting children first instead of families first,” they say. And over and over again, they tell us they are just “erring on the side of the child.”

But in the name of “child protection” children have been beaten. In the name of “children’s rights” children have been raped. And in the name of “erring on the side of the child,” children have been murdered. These are the stories of some of those children:


When Sara Eyerman of northern California was nineteen-months-old, child protective services was concerned that she wasn’t growing fast enough. So they “erred on the side of the child” and placed Sara in a “specialized” foster home.

About six weeks later, Sara began running a 105 degree fever. But the “specialists” in the specialized foster home decided it was o.k. to wait two days before taking her to a doctor. On the way to the doctor’s office, Sara Eyerman died of viral pneumonia.

“She should have been in the hospital two days earlier when she had a 104.8 [degree] temperature,” said Sara’s mother, Angie. “When she was home, she went to the emergency room if her temperature got over 101. I didn’t care if they laughed at me when I got there or not. One time I took her when she was cutting a tooth … I kept her alive for a year and seven months. They had her for six weeks and three days and she died.”[1]


Authorities in New York City thought Caprice Reid wasn’t being properly supervised by her mother. So they decided to “put the child first” and put the child in foster care. They made a “child focused” decision. They “erred on the side of the child.” Eleven months after placement in her third foster home, Caprice Reid, then age four, was dead.

Death did not come quickly. She was starved. She was dehydrated. And her body was covered with bruises. Police say she was tied to a chair and beaten with a stick for four days until she could no longer walk.

The foster home was licensed by one of the scores of private agencies that handle foster care for the city in the midst of a sudden shortage of foster home beds caused by the city’s decision to effectively abandon family preservation. The home was licensed even though another agency had found the home unfit just a few months earlier.

About a week before she died, Caprice Reid’s mother saw her daughter for the last time. The little girl clung to her mother’s neck and said “Don’t go, Mommy. I love you.”[2]


China Marie Davis was placed in foster care in Arizona when she was a little over a year old. Someone decided to “put the child first” and take her from her parents. They made a “child focused” decision. They “erred on the side of the child.”

Ten months later, China Marie Davis’ autopsy revealed two broken collarbones, a broken left arm, a broken right rib, two fractures of the left upper arm, a fracture of the right upper arm, broken left wrist, a broken left hand, a broken left forearm, a broken right wrist, a broken right forearm, fractures of both thigh bones and a compression fracture of the spine.

No one suspected anything because her foster mother always dressed her in such pretty outfits.[3]


Somebody “erred on the side of the child” and placed Corey Greer of Treasure Island, Florida, in a foster home that would later be described by police as “filthy and overcrowded.” The home was licensed for four children. By the time Corey Greer died in his crib of dehydration, 12 were living there. The foster mother was convicted of manslaughter and third degree murder.

Corey Greer might have survived the overcrowding, if only he had been white. According to a witness at the foster mother’s trial, the foster mother said that touching black children “just gives me the willies.” According to the witness, the foster mother referred to Corey Greer as “a big black blob.”[4]


Tina Ponce thought she was doing the right thing. She was suffering from bipolar disorder and couldn’t take care of her children. She also was too poor to get the help that a middle class family can count on. So she did the only thing she could think of: She asked the State of California to keep her children in foster care until she got better. Rather than provide Ponce with mental health services, the state “put the children first.” They made a “child-focused decision.” They “erred on the side of the child,” and gladly threw the children into foster care. “I had five kids, I was alone, I didn’t have any money, Ponce said. “I thought it would be a temporary thing. I didn’t think they would be in the system that long or it would be that hard to get them back.”

But when Ponce was better, she found it was much harder to get her children back than to get the state to take them. One day, while Ponce still was jumping through hoop after hoop in order to get her children back, she saw a television news story about a little girl who died after being left in her foster mother’s car in 100 degree heat.

It was her three-year-old daughter, Maryah.

“Even in my confusion, I never jeopardized my children’s safety or health,” Ponce said. “If I had them, this wouldn’t have happened. I thought I was doing the right thing by putting them in foster care.” [5]


When child protective services took four-year-old Jamie Mayne from his father, they never bothered to tell his mother, Marie Panos, who was not living with the man. The mother was never accused of abusing or neglecting the boy. But after she found out about the removal two days later and offered to care for him, authorities in California refused. They decided to make a “child focused” decision, to “put the child first,” to “err on the side of the child” by placing Jamie with a stranger.

“I went up to them to get my children, and they said they’re in the system now and I had to do a case plan in order to get my kids back,” Panos said.

But a jury in Visalia, California found that while Panos was working on her “case plan,” Jamie was being tortured and murdered by his foster mother. He died of a collapsed heart, a ruptured small bowel and an abdominal hemorrhage. There were more than 40 bruises on his body. “It’s hard because I can’t pick him up and kiss him,” Panos said at the foster mother’s trial. “All I have is a headstone to look at instead of his beautiful face.”[6]


Authorities in Massachusetts decided to “put the child first” and take seven-year-old Michelle Walton away from her parents. They made a “child focused” decision. They “erred on the side of the child.”

Three years later, the body of Michelle Walton was found in the dirty hallway of her foster home, under 380 pounds of Sheetrock. Her foster mother says it was an accident. But a judge found that it was murder. And he found that Michelle was chronically sexually abused during her time in “care.”

No one has been charged. According to the Boston Globe, Michelle’s mother “heads to work every day with a worn Peanuts knapsack on her back crammed with her daughter’s autopsy report and assorted other documents that chronicle her death and proffers them to most anyone interested. Not many are.

“‘I carry ’em because it makes it easier for my sanity … It helps me from going insane. Or maybe it just keeps her alive a little bit longer.”[7]


Of course most foster parents don’t harm the children in their care — but most birth parents don’t either. The case against family preservation has been fueled by “horror stories.” It’s important to remember that there are horror stories in foster care — and family preservation has the better track record.

More examples of the harm of “erring on the side of the child” can be found in Issue Paper 6.


1. Kent Pollock, “The Child Protectors: Innocent Suffer in War to Protect,” Sacramento Bee, August 3, 1986, p.1 Back to Text.

2. Rachel Swarns, “Agency Was Warned About Foster Mother Charged in Girl’s Death,” The New York Times, July 2, 1997, p.B3; Michelle McPhee et. al., “Two Charged in Foster Death” New York Daily News, July 2, 1997, p.17 Back to Text.

3. Clint Williams and Norm Parish, “Few Grown-Ups Wanted to Bother With China Marie Davis,” The Arizona Republic, April 9, 1994, p.A1 Back to Text.

4. Diana Smith, “Foster Baby’s Death Spurs Corrective Action by State,” Associated Press Dec. 8, 1985, “Race Issue Raised in Baby’s Death,” United Press International, Oct. 22, 1986,” Woman Faces Seven Years in Foster Child’s Death,” Associated Press, June 13, 1988. Back to Text.

5. Rachel Tuinstra, “Tot’s Family Still Dazed,” The (Riverside, CA) Press Enterprise, July 6, 2001, p.B1 Back to Text.

6. Jennifer M. Fitzenberger, “Visalia woman gets life for death of 4-year-old foster son,” Fresno Bee, Sept. 12, 2001, p.B1; Jennifer M. Fitzenberger,” Convicted foster mom’s ‘a good mother,’” Fresno Bee, May 24, 2001, p.A1 Back to Text.

7. Sally Jacobs, “Who Killed Michelle Walton?” The Boston Globe, December 10, 1995, p.1. Back to Text.

These Kids Were Not Protected in Foster Care

Court Rules In Favor Of Children Sexually Abused In Foster Care

POSTED: Monday, February 2, 2009

NASSAU COUNTY, Fla. — A settlement has been reached in the case of three foster children suing the state after they were sexually abused in a local foster home.

The children’s attorney, Brian Cabrey, claimed that child welfare workers knowingly placed the youngsters in a home with other young people who had a history of sexual aggression.

Cabrey said the former Department of Children and Families employees violated his clients’ 14th Amendment right when they failed to prevent the children from being sexually abused while in foster care.

The courts agreed, saying the employees failed to protect the kids.

The federal case made it all the way to the 11th U.S. Circuit Court of Appeals in Atlanta. There, the court ruled in favor of the children, giving them the right to sue for the abuse they experienced.

“This should never have happened to these kids. You can’t pick your parents, and the state had a role to play in these kids’ lives and should have saved them and protected them,” Cabrey said.

According to court documents, the abuse took place between 1999 and 2000, and at the time, the three children were all under the age of eight and placed in the same foster home with two teenage boys who were known to be sexual predators. One of the teens had previously been sexually abused by an adult male caretaker.

Cabrey said while the foster parents went to work, the younger kids were sexually assaulted.

“They were beaten up. They were raped, repeatedly. No child deserves to be abused, period,” Cabrey said.

He said the former DCF workers knew the kids were at risk when they were placed in that particular foster home and that risk was ignored.

“The state should have done a better job placing these kids when the state knew who they were placing these kids with. They certainly should have taken steps to protect these kids or prevent what happened from happening,” Cabrey said.

Shortly after the ruling in Atlanta, the state settled for nearly $3 million.

Cabry said the case now sets precedence and gives other victims a chance.

“Hopefully, fairer treatment, better results and a better time getting the help they need,” Cabrey said.

In a statement from DCF, the department said:
“This was a very tragic case of harm to children in a foster home. We wish it had never happened. We are glad that all parties have agreed to a settlement that can take care of the children’s future needs, and we hope they will recover.”

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Text SizeCourt Rules In Favor Of Children Sexually Abused In Foster CarePOSTED: Monday, February 2, 2009