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

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 pro
tective services agencies are not evil. But
even the best of us would have trouble cop
ing 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. Casework
ers for CPS agencies do have the power of God!

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