What Victims, Advocates, and Mandated Reporters Need to Know
The following information is from the Women’s Justice Center . To read the entire document, go to www.justicewomen.com
Most mothers say they would rather be threatened with jail than to be threatened with the loss of her child. Such a governmental threat is invasive, terrifying, and awesome. Yet virtually all the decisions as to her fitness, compliance, and fate are decided at the lowest judicial standard of evidence: 51% of the evidence. This is the 'preponderance of the evidence' standard. It is a far cry from the 'beyond a reasonable doubt' standard. (That is the standard the government must reach before sentencing someone to jail for even the briefest time.)
The level of proof against her that CPS is required to put forth is minimal. It provides the mother little protection against any abusive, prejudiced, or discriminatory exercise of power by CPS. The low evidence burden on CPS also makes it nearly impossible for the mother to defend herself, especially against their vague accusations. 'Failure to protect', or 'she knew or should have known' don't even constitute a crime in the criminal system. Yet on those grounds children are separated from their mothers.
The agency seems to be perpetually marred by a steady drumbeat of nightmare stories about CPS emanating from the very families CPS is supposed to serve.
The Oppressive Swath of Danger and Damage
The harm of the widespread CPS practice of removing children from non-offending parents extends far beyond the dangers and injustices to individual mothers and children. The harm extends to nearly every poor, immigrant, or minority race mother who is trying to deal with family violence. Most have heard stories of CPS removing children from other mothers in their neighborhoods. As a result, they become reluctant to seek help for their own situations for fear that the same thing might happen to them.
Key Facts About Child Protective Services and Child Welfare Agencies
1. In California, and Many Other States, Mandated Reporters Do NOT Have to Report to Child Protective Services.
Many counselors, teachers, doctors are already sympathetic to the problems mothers experience with CPS. But they say there's nothing they can do about it. They believe they must make a report to CPS. But that's not what the law in California and many other states says. Mandated reporters in many states can choose not to report to CPS. The law gives mandated reporters a choice of institutions to which they can report. You can make your report to police, sheriffs, probation departments, or child welfare agencies. In fact, in California and many other states the mandated reporting laws put child welfare agencies last on the list of options. You have other options, and often those other options will be much more beneficial for both the mother and the child.
2. CPS Does Not Have the Power to Open a Criminal Case Against the Perpetrator. Nor Do They Have the Power of Arrest.
CPS agencies are not law enforcement agencies. They are social service agencies. This explains why CPS does not take action against the perpetrators in cases of one parent’s violence.
3. The CPS/juvenile court System Has Only One Significant Power, the Power to Remove Children from their Parents.
CPS does not have law enforcement powers. But, unlike most other social service agencies, CPS does have one awesome power. They have the power to take custody and remove children from the home. The stated purpose of this power is to protect the child from future abuse. The stated purpose is not to punish anyone. But obviously for parents and children who love each other this forced removal can be the worst punishment of all.
4. At best, CPS/juvenile court Decisions are Made on the Lowest Judicial Standard of Evidence, the 'Preponderance of the Evidence' Standard, i.e. 51% of the Evidence.
There is a void of evidence and rigor in the CPS/juvenile court system. That leaves the decision making process wide open to the virtually unchecked influence of mistakes, bias, discrimination, prejudice, vengeance, hearsay, junk science, nonsense, and arbitrariness of all kinds. (The one exception to this is that a final termination of parental rights usually requires a 'clear and convincing' standard of evidence. This is still a much lower standard than the 'beyond a reasonable doubt' standard of the criminal system.)
Many lawyers themselves are so scornful of the flimsy evidence standard of the CPS system they call it "a crap shoot", or the "anything goes" standard. The problem for the mother goes beyond the fact that CPS doesn't need much evidence against her. It also means that whatever opinion a CPS worker may have of you, the worker can usually support that opinion in court. She can simply fish through the extensive family details the worker has gathered. Then she selects the one or two tidbits that favor the opinion.
5. The Flimsy 'Preponderance of the Evidence' Standard is Bad Enough But things are Actually Much Worse.
Increasingly, the CPS/juvenile court systems are handing off their fact finding and decision making responsibilities to mediators, evaluators, and even to CASA volunteers. All of them operate on NO standard of evidence at all.
There are a number of things that makes the system tend toward abusive responses. One of these is the cardinal truth of any power. Unchecked power always tends towards abuses of that power. And the power of CPS is hugely unchecked. And worse yet, as is discussed later, it is exercised in secret.
A second thing that tends the system toward abusive and prejudicial responses is the class of the mothers themselves. Heaping social prejudices already prevail against them. The mothers who come to the attention of CPS are most often poor, or immigrant, or minority race. The harsh realities and chaos of their lives are generally incomprehensible to people who don't live like them. There is much prejudice, stereotypes, ignorance, and blame against these women floating in society. So the middle class social service system is primed from the start to blame these mothers. Or at the very least, they believe it's the mothers that need to be fixed.
6. Both the Federal and State Welfare Law Governing the CPS/Juvenile court System are Full of Vague, Non-mandatory Language. This Further Promotes the 'Anything Goes' Atmosphere of CPS Proceedings.
In addition, these laws almost always refer to the parents as an undifferentiated single unit, "the parents'. This puts a legal lock on viewing the non-offending parent with as much culpability as the abusive parent. Only recently has the legal language begun to recognize the existence of the 'non-offending parent' as separate or unique from the offending parent.
7. The CPS/Juvenile Court System Operates in Secrecy Off the Public Record. This secrecy fans the flames of the system's other tendencies to abuse.
The CPS/Juvenile Court findings, proceedings, mandates, and actions take place off the public record. This is ostensibly to protect the privacy of the child and family in what is viewed as a private family matter. But who really has been more protected by this secrecy, the CPS system or the families it serves?
Nothing fans the flames of governmental abuse like governmental secrecy. Secret files, secret evidence, secret accusations, secret proceedings are a sure fire formula for allowing abuses to thrive and expand throughout the system. Since its inception, CPS/juvenile court activities have been off the public record with the exception of only a few states. The involved parents are informed. But, to date, neither the public nor any public watchdog has been allowed scrutiny or oversight of the handling of these cases.
Fortunately, it looks like there is the possibility this may change. In 2005, The National Council of Juvenile and Family Court Judges voted approval of presumptively open hearings with discretion of courts to close. This isn't yet law, but it's a big step in that direction.
8. Most all CPS/juvenile court Systems deal ONLY with Intra familial Child Abuse.
There is a schism between the way society deals with child abuse perpetrated by a family member versus child abuse perpetrated by an 'outsider' . This points out a staggering hypocrisy in the rhetoric about treating child abuse seriously. Behind the rhetoric is a child welfare and police system that in reality works hand in hand to let most child abusers walk free.
Many people are very surprised when they call CPS to report a child abuse case perpetrated by a neighbor, a priest, a stranger. CPS tells the caller they don't handle these cases. They only respond to cases in which the perpetrator is a family member. So CPS tells the caller to report to police.
Another thing that may surprise you. If you call police to report a case of child abuse perpetrated by a family member, police will often tell you to report the case to CPS. Police could take the report if they wanted to, and they should take the report. But police themselves are all too often on the same philosophical page as CPS. They too often believe that when fathers 'grow their own victim', the fathers shouldn't be held accountable like other offenders.
And even if police do take a report of sexual abuse perpetrated by a family member, chances are very good, even if convicted, he will get off lightly compared to an outside-the-family perpetrator. California law, like the law in many states, maintains gaping legal loopholes. Prosecutors can, and frequently do, charge intra familial child sex abuse under different codes which allow the family offenders much lighter sentences. What's perhaps most telling is that, at least in California, these legal loopholes for intra familial perpetrators have been widened over recent years, rather than tightened. The more women and children have made demands on the system to stop family violence, the more the system has created ways to look good while paving the perpetrator's escape. The patriarchy with all its bluff and bluster to the contrary, still supports the notion that a man's home is his castle, and that his children are his to do with as he pleases. Unfortunately, CPS, with its hold-no-perpetrators-accountable system, is a vital part of the machinery for perpetuating these archaic and oppressive beliefs.
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