ARE WE FINALLY ON THE VERGE OF LEGAL RESTRAINT OF THE CPS?

Neither Left nor Right, but Catholic

ARE WE FINALLY ON THE VERGE  OF LEGAL RESTRAINT OF THE CPS?

By Stephen M. Krason

Two major legal cases, very important for the American family but largely out of the vision of the media, are currently in the courts. They have major implications for the constitutional rights of parents and for bringing the rule of law to the astoundingly arbitrary child protective system (or CPS). The CPS is the structure of state, county, and local agencies that are officially charged with protecting children from abuse and neglect at the hands of their parents and guardians.

The cases are Camreta v. Greene/Alford v. Greene, which were recently argued in the U.S. Supreme Court, and Loudermilk v. Arpaio, currently in the Ninth U.S. Circuit Court of Appeals. Both involve the question of whether of whether operatives of the CPS and the local law enforcement officials they sometimes call upon to back them up can be sued under federal civil rights laws (laws immunize the CPS from regular tort actions). In the Greene cases, an Oregon mother sued after the CPS took her nine-year-old daughter out of her school classroom, confined her in another room, and subjected her to an intensive two-hour long interrogation until under duress she falsely accused her father of abusing her. She then went home and vomited five times. The CPS also forced her to submit to an intrusive physical examination, and forbade her mother to be present for it. These practices are not unusual for the CPS around the country. The Greene cases have attracted an unusual array of organizations—from left to right on the political spectrum—supporting the mother with amicus curiae briefs (including one by the Society of Catholic Social Scientists, which I drafted). How these cases turn out will probably determine the outcome of Loudermilk. In another far-from-unique scenario, Arizona CPS social workers backed by sheriff’s deputies showed up at a homeschooling family’s door demanding entry without a warrant. This was occasioned by a false, anonymous complaint six weeks earlier (hardly  an exigent circumstance that would justify warrantless entry) that the parents were neglecting their children. The deputies threatened the parents with arrest and removal of their children if they did not “consent” to an illegal search. The federal district court ruled against the CPS and the deputies; there has been enough case law to establish that the Fourth Amendment applies in such cases. The CPS did not appeal, but the deputies did, and the case is now before the U.S. Court of Appeals for the Ninth Circuit (which is also where the Greene cases came to the Supreme Court from). Incidentally, the deputies in Loudermilk are subordinates of Sheriff Joe Arpaio in Maricopa County. He has gained plaudits from many political conservatives for his tough stance on immigration enforcement and no-nonsense dealing with prisoners, and is seeking the Republican nomination for U.S. senator next year.

The CPS has been a runaway, systemically abusive system that was thrust unawares on American families by the 1974 Mondale Act. In spite of the decades’ old claim of a crisis of child abuse and neglect, what really has occurred is an explosion of false allegations. For twenty-five years, research has indicated that about two-thirds of reports made to the CPS across the country are unfounded. More recent HHS data is showing that it is now over 80%. This involves a couple million children a year. Even many of the substantiated allegations involve minor matters, and not, say, the physical battery and sexual molestation that most people think of as abuse.

This epidemic of false reports is not surprising, since a mere anonymous phone call is enough to trigger an investigation. This often happens because someone didn’t like parents’ childrearing practices, as probably happened with the homeschooling parents in Loudermilk. Also, the laws are so vague that child abuse becomes anything the CPS’s operatives—who can’t even agree about it among themselves—want it to be. It is not surprising that with the CPS chasing imaginary problems, it frequently misses serious cases of child maltreatment.

The Mondale Act’s supposed aim was to prevent all child abuse. That sounds laudable, except when one considers that the way it sought to do it was by the creation of a nationwide bureaucratic octopus—the CPS—that intervenes into families at the drop of a pin. It has a built-in suspicion of all parents as potential abusers. It is not surprising that an extensive study undertaken by the Institute for American Values showed that most American parents nowadays take for granted that the state has absolute power to monitor their families, shape their childrearing practices, and even remove their children from them. The totalitarian implications are clear. Like most utopian schemes,  however, it has become a dystopia. As the numbers of false allegations suggest, the CPS has been short on dealing with child abuse and long on regimenting childrearing—even though its operatives often have no experience raising children themselves.

The CPS’s anti-parent bias and the ease at which the laws permit it to intrude into the family fly in the face of Catholic social teaching. The Catechism of the Catholic Church states that the family “is the original cell of social life” (#2207). The Charter of the Rights of the Family holds that for the state to “in any way limit the freedom of couples in deciding about their children” is against human dignity and justice (art. 6). The famous encyclical Rerum Novarum forbids the state to “exercise intimate control over the family,” and says it may intervene in it only when it is in “exceeding distress” or if within it there are “grave disturbances of mutual rights” (#14). It has been disappointing that, over the years, the U.S. bishops conference has not spoken up against the CPS.

A pro-parent Supreme Court decision in the Greene cases—and a follow-up in Loudermilk—could begin to bring the CPS to bay, and perhaps open the door to a desperately needed reform of American child abuse laws and child welfare practices generally.

Stephen M. Krason is Professor of Political Science and Legal Studies at Franciscan University of Steubenville and Co-Founder and President of the Society of Catholic Social Scientists. He has written several scholarly articles on false child abuse allegations and the CPS.