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Raising standard of proof for CPS will protect children

Three years ago, the governor and allies like Rep. Pete Hershberger, R-26, said they knew why so many children were dying even when their plight was well known to Child Protective Services. CPS workers, they claimed, were fanatically bent on preserving families at the expense of child safety. Change the law to clarify the agency’s mission, and such deaths would be reduced if not eliminated. S1430 hinders us from keeping children safe, April 21
The Legislature complied. Two years later:
• With workers terrified to leave children in their own homes, the state remains convulsed by a foster-care panic. The number of children torn from their parents over the course of a year soared by 40 percent — the largest two-year increase anywhere in the nation. (The number of children in Arizona increased by only 5 percent during this time). But there’s no evidence children are 40 percent safer — or any safer.
Rep. Hershberger is reduced to claiming it is progress that the increase in child abuse fatalities was relatively small. One can only pray that the vulnerable children of Arizona are spared any more such “victories.”
Meanwhile, despite facing serious problems with methamphetamine addiction, Alabama and Illinois take children at rates far lower than Arizona. But both these states are national models for keeping children safe.
• Thousands more children are bounced from foster home to foster home. At least three have died in Arizona foster homes under mysterious circumstances. Many more will emerge years later unable to love or trust anyone. A recent study of alumni of foster care systems better than Arizona’s found that one-third reported being abused by a foster parent or another adult in a foster home. Overall, the study found that only 20 percent of the foster-care alumni were doing well.
• Other children — even infants — are trapped in the worst form of care of all, institutions and parking place “shelters.” Yes, such placements are down. But they’re down from one of the worst records in the nation — caused by the foster-care panic. And Arizona still institutionalizes so many young children that the Youth Law Center may sue the state over it.
Back in 2003, my organization predicted the surge in child removals, and the dreadful consequences, because the same thing happened in other communities that went through similar foster-care panics. That’s because the real reason children known-to-the-system die almost always is that caseworkers are overwhelmed. Rep. Hershberger’s “solution” overwhelmed them some more. That’s why all over the country, foster-care panics have been followed by increases in child abuse fatalities.
Now, Rep. Hershberger is trying to scare the Legislature away from S1430, which would make modest changes in the standard of proof CPS would have to meet before tearing a family apart.
Under current law, CPS can take a child from a family, and file him away in foster care indefinitely, on little more than a whim. The worker doesn’t need to prove the case beyond a reasonable doubt — the standard needed to convict a child murderer — or even offer “clear and convincing” evidence, the middle standard used in some civil cases. CPS need only offer a “preponderance of the evidence” — the lowest standard in American jurisprudence — the same standard used to decide which insurance company pays for a fender-bender.
That’s O.K says Rep. Hershberger, because there are safeguards built into the system. But that’s the Disney version. Here’s how it works in real life:
Rep. Hershberger admits that CPS has a free shot at any child in the state for five to seven days before the family even sees the inside of a courtroom. For a young child, desperate and confused, wondering if he’ll ever see anyone he knows and loves again, it’s an eternity — more than enough time to leave devastating emotional scars.
What happens at that first hearing? On one side is a lawyer for CPS who’s had a week to prepare. On the other side is an overwhelmed, impoverished birth parent who typically just met her lawyer in the hallway five minutes ago. That lawyer, an overwhelmed public defender has no way to make a case and no time to try. Presiding is a judge who knows that he can hold hundreds of children in foster care needlessly and, though the children’s lives might be ruined, his career is safe. Send one child back to a dangerous home and his career may be over.
Rep. Hershberger himself complains that if S1430 becomes law, caseworkers actually would have to take the time to offer a serious case for removal. What does that tell us about what happens now?
S1430 would make one small change to this stacked-deck process: It would raise the standard of proof from the fender-bender standard, “preponderance of the evidence” to “clear and convincing.” The standard would rise to beyond a reasonable doubt only long after the child is in foster care, when the state wants to sunder a family forever through termination of parental rights.
These are the same standards already applied to Indian nations, because Congress recognized that the untrammeled power of CPS agencies was destroying entire Indian communities. Impoverished communities elsewhere suffer no less when CPS gets it wrong.
Contrary to Rep. Hershberger’s claim, the issue here is not parents’ rights — it’s children’s rights. S1430 is needed to spare children from the emotional devastation of being torn from everyone they know and love because the family’s poverty is confused with neglect. It is needed to protect children from a system that churns out walking wounded four times out of five. Yes, under the leadership of Dave Berns, the Department of Economic Security is trying to build an infrastructure of prevention to reduce wrongful removals. But services are no substitute for due process. A system that truly protects children requires both.
That should open the way for compromise. Arizona still spends, proportionately, far less than most states on child welfare. So how about trading money for due process: The Legislature passes a stripped-down version of S1430, with only the provision raising the standard of proof to “clear and convincing.” And the Legislature adds money — targeted specifically for safe, proven alternatives to foster care. The governor agrees not to veto the bill.
Give the governor a choice: The money she says she desperately needs in exchange for a tiny diminution in the near-absolute power of CPS. It would be instructive to see which she’d choose.
Richard Wexler is executive director of the National Coalition for Child Protection Reform, www.nccpr.org

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