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NCCPR Child Welfare Blog: A “child size” Bill of Rights

In Family Rights on June 22, 2009 at 6:42 pm

NCCPR Child Welfare Blog: A “child size” Bill of Rights.

During the four days of non-stop television coverage after 9/11, there are many moments I will never forget. But the moment I remember most – and the moment when I was proudest to be an American – has no vivid images. It has not been replayed over and over on television.

It happened about two days in: Police in Boston had surrounded a hotel and were waiting to move in on rooms they thought might have been used by the terrorists. They waited and they waited. For awhile, no one could figure out why they weren’t moving in. Then a reporter found out: They were waiting for a search warrant.

That was the moment I was proudest to be an American because that was the moment when we showed that, just days after the worst attack on American civilians in our history, we were determined to live our values, to use President Obama’s phrase.

Of course that determination waned a lot in the years since. But at least my fellow liberals could be counted on to fight each new infringement on civil liberties. Of course, that’s because those whose liberties were being infringed upon were accused merely of plotting to blow up buildings and airplanes and kill thousands of people. The big tactical blunder of Bush and Cheney was failing to whisper in liberals’ ears the two magic words that get so many of them to abandon everything they claim to believe in. They failed to accuse all the people rounded up in the wake of 9/11 of – child abuse.

The most recent example of this liberal myopia: The desperate attempt by, mostly, liberals in Texas to gut two court rulings that modestly bolstered children’s protection against needlessly being interrogated, stripsearched, and taken from everyone they know and love. They were defeated in their effort to undermine these rulings when a coalition of conservatives and other liberals persuaded Gov. Rick Perry to veto SB 1440, a bill that would have allowed Texas CPS to pretty much enter any house any time it wanted for any reason.

After the bill was vetoed, the Austin American Statesman turned a large chunk of its story into a de facto op ed column by one if the state’s leading “liberal” groups, the Center for Public Policy Priorities, to fulminate against the veto. According to the story:

One of the opposition’s concerns is that under the bill, they said, the parent would not have gotten a hearing before CPS interviews their child. But [CPPP’s Jane] Burstain said that family courts aren’t currently required to give parents such hearings for the same reason that criminal courts don’t give suspected drug dealers a hearing before their house is searched.

“You don’t want to be tipping off abusers,” Burstain said. “If you tell the abuser, ‘Hey, we’re coming to your house,’ the abuser has the opportunity to coach the child, to coerce the child into lying.” Elsewhere, CPPP has suggested that allowing a hearing first, in any situation, would allow parents to destroy evidence.

Where to begin?

First of all, just as Burstain admits, current Texas law already allows CPS to get court permission to enter homes without giving families a chance to object. But precisely because that is such a drastic infringement on people’s rights, and can inflict so much trauma on children, there is supposed to be a reasonably high standard of evidence offered to the judge before she or he gives that permission. As a practical matter, in child abuse cases, the standard is pathetically low – but SB 1440 would have lowered it still further.

Even had the bill passed, apparently it wouldn’t have been enough for CPPP. Comments by Burstain and the group’s director, Scott McCown, suggest they want there to be no circumstance under which families could get a hearing first, because then CPS would lose that element of surprise – which they say is just like criminal cases. In fact, in some criminal cases there is a requirement for such hearings. And the difference between child abuse cases and drug cases is explained in a detailed letter, in effect almost a legal brief, from the Texas Home School Coalition urging the veto. THSC notes that this analogy

unwisely assumes that the child is “evidence”. The child will not be destroyed, and if a judge, after a contested hearing, decides that the child should be interviewed, expert techniques can be employed to elicit evidence. Also, medical examinations can determine whether the child has been subjected to long term abuse even after time is taken for a fair and contested hearing. Second, parents have no access to original medical records held by medical practitioners and cannot destroy them. Furthermore, because medical professionals have a duty to report abuse, [CPS] already has access to the actual medical professionals. A process which disregards the rights of parents and the emotional impact upon children is not needed in order to get medical information.

Finally, if the [issue is] … tangible evidence in the home– other than the child— … a criminal investigation should ensue which includes all of the protections to the accused which criminal law provides and this bill does not. In that vein, there are already procedures in place to obtain a legitimate ex parte search warrant, via the criminal justice system.

But there is an even more fundamental problem with this analogy.

If the police mistake your neighbor for a drug dealer, the neighbor no doubt will be traumatized, but at least he’s an adult. If CPS, based on no more than an anonymous call, bursts through the door of your neighbor’s house because they think he’s a child abuser, it’s innocent children who suffer.

It is children who will face traumatic questioning. It is children at risk of being stripsearched by strangers looking for bruises. And it is children who risk being torn from everyone they know and love and thrown into the chaos of foster care – where at least one in four is likely to be abused. The younger the child the greater the harm.

One need only recall the hideous conditions the FLDS children endured during the first days after the raid, and the searing statements from the state’s own therapists concerning the harm this internment was doing to the children to understand why it is so urgent that children be protected from this unchecked power.

There are conservatives who have a lot to answer for, too, of course, particularly those, like Newt Gingrich, who want to throw poor people’s children into orphanages – suggesting that he feels “family values” are strictly a middle-class entitlement.

But for the left, what it all boils down to is this: When it comes to child abuse, too many of my fellow liberals refuse to heed President Obama’s call for us to live our values. Indeed, CPPP and too many other liberals apparently believe in a “child size” Bill of Rights. They shrink it by leaving out Amendment #4.

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