CIVIL LIBERTIES WITHOUT EXCEPTION: NCCPR’s Due Process Agenda for Children and Families

CIVIL LIBERTIES WITHOUT EXCEPTION:
NCCPR’s Due Process Agenda for Children and Families

By Richard Wexler, NCCPR Executive Director
August, 2008

INTRODUCTION
Suppose, when he was attorney general, John Ashcroft had proposed anti-terrorism
legislation with the following provisions:
Special anti-terrorism police could search any home without a warrant – and
stripsearch any occupant -- based solely on an anonymous telephone tip. Any occupant of
the home could be detained for 24 hours to two weeks without so much as a hearing – and
they’ll probably be detained far longer because, in the special anti-terrorism court set up by
this legislation, all the judges are afraid to look soft on “terrorists.”
At that first hearing the detainees may – or may not – get a lawyer just before the
hearing begins, and they almost never get effective counsel.
At almost every stage, the standard of proof is not “beyond a reasonable doubt”
or even “clear and convincing” but merely “preponderance of the evidence,” the lowest
standard in American jurisprudence, the same one used to determine which insurance company
pays for a fender-bender.
And in most states, all the hearings and all the records are secret.
Had Ashcroft proposed such legislation, civil libertarians would have been in an
uproar. Yet this is, in fact, the law governing child welfare. And sadly, many who in other
circumstances are quick to defend civil liberties either stand silent or support it.
The National Coalition for Child Protection Reform believes the only way truly to
protect children is to demand civil liberties without exception. There can be no true child
protection when a government agency is given virtually unchecked power, almost no accountability,
and operates in secret.
That is why enacting meaningful due process protections for families is at least as
important as improving the “services” they receive from child welfare agencies.
Since 2000, NCCPR has issued reports on 13 state or local child welfare systems.
Below are some of the due process recommendations from these various reports.
RECOMMENDATION 1:
TRANSPARENCY
All court hearings in child
maltreatment cases and almost all
documents should be subject to a
“rebuttable presumption” of openness.
Hearings and records would be
closed only if the lawyer for the parents
or the guardian ad litem for the child
could persuade the judge, by clear and
convincing evidence, that opening a given
record or portion of a hearing would
cause severe emotional damage to a child.
The judge then would keep closed
only the minimum amount of material
needed to avoid the damage.
The people who work for child protective
services agencies are not evil. But
even the best of us would have trouble coping
with nearly unlimited power and no
accountability. One caseworker allegedly
told some parents: “I have the power of
God.” It’s alarming if he said it. But what’s
DUE PROCESS AGENDA/2
even more alarming is: It’s true. Caseworkers
for CPS agencies do have the power of
God.
“[Opening family courts]
has been 100 percent positive
with no negatives … Our
worst critics will say it was the
best thing we ever did. Their
fears were unfounded … I
wish other states would do it.”
--Jonathan Lippman,
Chief Administrative Judge,
State of New York
To give a young, inexperienced
worker the power of God, send her out on
what she is convinced is a Godly mission to
rescue innocent children from the scum of
the earth -- knowing that there will be no
penalty for removal and hell to pay if she
leaves the child home and something goes
wrong -- and then expect her to exercise
self-restraint is more than can be expected of
most human beings. Rarely is the power of
God accompanied by the wisdom of Solomon.
The power must be checked by accountability.
Accountability is not possible
in secret. Nor is accountability possible
simply by hiring people with more expertise
and assuming they will do the right thing.
It’s not supposed to work that way in
a democracy. That is why it is so urgent that
all court hearings and almost all records in
child welfare cases be presumed open.
An exception would be made to the
presumption of openness for portions of
documents that name people who reported
child abuse in confidence. Even then, however,
if a parent claims to be a victim of
harassment, that parent should be allowed to
ask a judge to review the record and, if the
judge agrees there has been harassment,
open this record as well, and give the accused
the right to sue. (See Recommendation
9).
Only the lawyer for a parent and the
guardian ad litem for a child should be allowed
to request secrecy. CPS should not
even be allowed to ask for it. CPS has no
interest in secrecy other than as a way to
cover up its failings. If secrecy truly is
needed to protect a child, that’s what the
guardian ad litem is there to ask for.
The argument against opening hearings
and records is that it would embarrass
children.
That argument fails on several
counts:
• The alleged potential for trauma
does not explain why information is kept
secret even after a child has died.
• In the overwhelming majority of
cases there are no graphic details to report.
Most cases involve “neglect.” A child will
not be testifying about being beaten or raped
because that’s not the accusation.
• The most traumatic cases are likely
to involve not only child protection proceedings
but criminal cases as well. These hearings
already are public. Yet we have never
seen nor heard a single account of a child
saying that she or he was traumatized by the
fact that such a trial was public. Nor do we
know of any adult coming forward years
after the fact to complain of such trauma.
• At least 14 states have opened
child protection proceedings to the press and
the public. Two more let in reporters only.
In every one of these states, the same fears
were expressed. But a comprehensive nationwide
examination by the Pittsburgh
Post-Gazette found that none of the problems
materialized. Indeed, over and over,
one-time critics became converts.1

Read More:
http://www.nccpr.org/reports/dueprocess.pdf