The Spectrum June
Family Services faces abuse concerns
By JENNIFER WEAVER
CEDAR CITY -- While the Utah Division of Child and Family Services says its mission is to protect children at risk of abuse, neglect and dependency, groups such as Family Rights of Utah argue that is accomplished by carrying out unconstitutional acts.
"All you have to do is look at the Bill of Rights and they simply do not adhere to them, and it's frightening that they can get away with that," said St. George resident Morris Workman, co-founder of Family Rights of Utah with Ivins resident Lois Bass.
Bass is a former DCFS caseworker and wrote on the FRU Web site, "The Division of Child/Family Services works behind closed doors, as does the Juvenile Court system, without benefit of public scrutiny or oversight.
"Nor do they honor an individual's Constitutional rights, i.e., due process, freedom of speech, the right to have an attorney appointed if you cannot afford one, the right to representation and to be deemed innocent until proven guilty, the right to raise your children without undue interference from any government entity, to list a few."
She added, "Parents have the right to demand that a warrant be produced before letting any child protective services worker or police officer into their homes to question them or their children, and to view any allegations of abuse or neglect, but most people don't know that."
"Our public schools also have an absolute obligation to let a parent know that a Child Protective Services worker or law enforcement person is at the school to question/view a child, before just taking that child into custody without parental knowledge."
She continued, "Unfortunately, most individuals do not realize these things; nor do they realize that their fundamental Constitutional rights have been eroded and eliminated in our Juvenile Court systems over the past 20 to 30 years."
DCFS Director Richard Anderson said in a December interview conducted by e-mail, "We are as concerned about individual rights as anyone. There are many balancing issues where we have a hard time in our society coming to an agreement."
"A guiding child welfare value that has supported the work that is done in behalf of children (and in behalf of their families) is that all children have an absolute right to a safe, permanent, stable home which provides basic levels of nurturance and care, and is free from abuse and exploitation."
Troy Randall, Child Protective Services Supervisor in Tooele County, expounded, saying rights of parents are "contingent" and rights of children are "absolute."
"From what I understand (of) how the courts have forever interpreted the relationship between the states and the court system is that states have a vested interest in children," Randall said. "States have from the beginning -- from a long time ago in England to recent court decisions -- they have always maintained that states have vested interest in children's well-being, safety and education."
He added, "We have been mandated to protect that special trust between the state and the children, and obviously how we apply that is then try to be as family-friendly and true to the family process as possible.
He said CPS staff believes the place children can experience the best outcome is in their own families.
In order for the removal of a child to take place, the case must be substantiated. The substantiation definition changed in July based on new legislation and is basically now separated into "supported" and "nonsupported" classifications.
Randall explained that the division enters its finding before a juvenile court judge after it has been thoroughly staffed with a supervisor, including another partnering agency. By that point officials have determined neglect or abuse has occurred to the point that the child is in imminent danger and not safe to remain in the home.
According to Oct. 2002 statistics, DCFS received 19,053 abuse referrals. Of those, 6,952 were substantiated. From substantiated cases, 1,624 children were removed from their homes. An estimated 260 children were permanently separated from their parents.
Randall emphasized that children are only placed in protective custody when circumstances are of "substantial risk" or "imminent risk," with final determination made by a judge.
"The law has changed as of last July -- and went into effect in May -- that the division is required to get a warrant through the juvenile court and approach the Attorney General's Office to seek a warrant to remove a child. It won't happen unless there is exigent circumstances, such as an arrest for drugs where both parents are going to jail and no one else is available to care for the kids. Then they would be placed in protective custody."
He added, "We're trying to understand the intent of the Legislature and using every effort to make sure all removals are done with a warrant to protect the due process and Constitutional questions that continually plaque this work by protecting children and not violating Constitutional rights."
Workman argues DCFS philosophy may sound reasonable but is not always followed. His 14-year-old daughter was taken into protective custody a year ago after exaggerating to friends that a slap from her mother was a beating, Workman said.
"Our older daughter, being a typical teenager with puberty raging its ugly head -- and she was going through some things -- was confronted for going down the wrong path, disobeying and exhibiting behavior problems and hanging out with a new group of friends she had chosen we didn't approve of," Workman said. "She ditched a class ... and when my wife confronted her to get it across to her that it was not the way to go, the argument became heated and my wife grabbed her arm and left marks on the inside and outside of her arm. She grabbed her to get in her face and words were exchanged and my wife slapped her."
"By the time I got home, she and my daughter didn't seem overly upset and the entire situation had calmed down."
Much to his astonishment, the following day he received a call at work from his wife that DCFS was on their way over. Apparently, one of his daughter's friends told a school official of the event relayed to her and the school official reported the incident to DCFS.
Workman's daughter was interviewed at school without his, or his wife's, prior knowledge.
"One of the guidelines by DCFS is that they can't interview a child without parental permission but they almost always do," Workman said.
Workman rushed home as a caseworker showed up with a policeman. He said he and his wife sat down and discussed the matter.
"They don't bother giving you the Miranda Rights and they pretend they are here to help, but they are there to gather information for their charges," Workman said. "I thought we were sitting down to talk about and explain our situation, and the caseworker is taking notes and we think everything is going to be OK. But then the caseworker starts hammering my wife and telling her she is an abusive parent."
"My wife defended herself and said, 'Not you, and not the state of Utah is going to tell me how to raise my child.' I knew then that we were not on the same track. The caseworker became defensive and told us they were going to take our daughter into protective custody," Workman said.
Workman's daughter was taken to a crisis center for 24 hours before the initial hearing on the case. During her stay she was introduced to her foster parents before a judge even had made a determination on whether she was to be returned to her parents or not. Ironically, she was never placed in foster care.
"Almost everyone assumes that a parent has done something horrific when their child has been taken into custody by an overzealous CPS worker," Workman said. "But as far as the Constitutional issues go with DCFS ... we live under the fallacy that you're innocent until proven guilty, and you prove that you're worthy. They punish you first, and then give you your due process."
Randall said DCFS has a legislative mandate to evaluate families and act in the best interest of the child. A juvenile court rules on what constitutes best interest. Workman believes the juvenile court itself is unconstitutional for not allowing jury trials.
However, Anderson said jury trials are not a guarantee of the federal Constitution in every type of case.
"The Utah Constitution does seem to grant a more broad right (Article 1, section 10) but a broader interpretation of that section would seem to be inconsistent with what has long been the law in Utah: That juvenile cases are decided by a judge, not a jury," Anderson said. "Furthermore, states have always controlled the type of cases in which this opportunity is provided. For example, jury trials are not used in delinquency cases or divorce cases in Utah."
However, Workman and Bass say state mandates or laws do not override our national constitutional laws and civil rights.
"We're just like everybody else and believe the Constitution protects us and government is run by reasonable people," Workman said. "How did we get to this place where rights don't count and government doesn't care about their citizens?"
One of the most highly profiled cases in Utah that challenged the due process of the removal of a child was the Roska vs. Peterson case. Connie Roska of Layton sued the Child Protective caseworker who removed her 12-year-old son from her care after alleging Munchausen by Proxy -- a disorder where a parent intentionally makes his or her child sick to get attention.
Though Roska told the caseworker her son had chronic pain syndrome from kidney and gallbladder complications and was being treated by physicians at the Primary Children's Hospital in Salt Lake City, she was ignored, even after phoning a physician to verify the care being rendered to her son.
The doctor vehemently forbade the removal of the child saying it would be harmful and aggravate the boy's condition and recovery. Regardless, he was taken into state custody and placed in a specialized foster home for 10 days where his health deteriorated from receiving incorrect medication and care.
The Roskas hired an attorney, filed suit against DCFS and its decision to disregard the evidence and medical advice concerning their son's illness. The state dismissed the case, but the 10th Federal Circuit Court of Appeals overturned the decision in August 2002, stating that the caseworker had violated Roska's 4th Amendment (removal without a warrant) and 14th Amendment (removal without due process) rights.
DCFS contends that it provides its own system of challenging findings with an appeals process called an administrative hearing. Names of individuals placed on the Licensing Information System who were found to be substantiated cases of abuse can request a formal hearing and prove that the allegations are either "without merit" or "unfounded."
"There is nothing in the law that says that an acquittal in a criminal case requires that we amend our information system," Anderson said.
Pointing out there is an appeals process, DCFS is appealing the Roska lawsuit.
Workman believes a good portion of DCFS disdain for those that question its motives and methodologies is about money. The Adoption and Safe Families Act passed by Congress in 1997 gave financial incentives to states for removing children from their homes and placing them up for adoption. The federal government allocates states an average of $13,000 per child in foster care each year out of the Social Security Trust Fund, with up to $50,000 a year to provide services to that child.
Furthermore, another $4,000 to $10,000 is given to states that can terminate a parent's rights and successfully get the child adopted. Federal funding also pays a per-child bonus to each state that boosts its annual number of adoptions from foster care.
Of the nearly $124 million budget of DCFS, half is provided by the federal government. In contrast, Utah receives nothing to leave a child in his home, and zero dollars if that child is placed in kinship care.
"Where do you think the loyalty of the division is going to be? With families or the hand that is feeding them," Workman said. "With the enticement of all that federal money, the states are abusing their power and removing children from their homes, over-protecting them."
Randall confirmed the federal government reimburses DCFS with nearly a two-thirds match of funds. For every $25 the state pays, the federal government will pay $75, he said.
Randall said the definition of an "eligible child" is complex with varying levels of eligibility, but basically explained that a child (or family) that is eligible for federal resources like Medicaid, or other federal programs, who is taken into custody has a "very good possibility to be eligible for the federal match."
But money is far from what is driving DCFS, Randall said. It is the child's best interest that is the heart of the child welfare system, he said.
"We recognize in the vast majority of the cases that the best interest of the child is the best interest of the family, and they are not mutually exclusive," Randall said. "We recognize these children have a primary bond, and will always have a relationship with their parents, and we recognize if at all possible to strive to protect and help the children in the confines of their own homes, and in the structure of their own families ... Today, there is very little done without the family present. Parents take an active role of the decisions for the well-being of their children and the entire family."
Workman finds that hard to believe from his own personal experience. He was reunited with his daughter after five days, three court hearings, the signing of an agreement to adhere to a plan that included taking parenting classes that was modified without their approval, and only after his wife publicly admitted that what she had done was wrong.
"Now that our eyes have been opened, it's impossible to close them again," Workman said. "I wonder how long it will take before families start paying attention ... I suppose they will when DCFS comes knocking on their door.
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