Gag Order: analysis

Gag Order: Is SC Child Welfare Services out of control? 101410
Note: Sierra County Prospect supports forward services to prevent involvement with CWS; use and support your Family Resource Center.  Further, it isn’t our intention to indicate any individual judge or staff person as the source of a problem.  We do, however, maintain the right under the 1st Amendment to have this important discussion

We all break the law all the time, every day. 
If we each had a cop with us 24/7, we’d all be living in prison, if not because of one big crime, because of all the little laws we violate every day: we’re habitual criminals.  You don’t even know you’re breaking most laws; there are just so many laws on the books to break, and so many different interpretations from the cops, DA and judge that it is possible to go to jail for almost nothing, or certainly something you didn’t know was illegal.

The only thing that prevents us from living in a total police state hell is that there aren’t enough cops to follow us all around, and there aren’t enough jail cells or judges.  Some of us have to get away, and they have to let some of us go.

Focus now on the family, your family or someone you know with kids.  If we were all followed around by CWS social workers 24/7 none of us would have kids.
That’s what appears to be happening in Sierra County.

Now Focus on Families
Welfare and Institutions Code Section 16502 specifies as follows:
Child welfare services... shall be established in any county or combination of counties when a plan which includes financing of such services has been certified by the department.  MMP 31-010

Many readers will be familiar with the Mountain Messenger’s continuing story on CWS in the county.  The Prospect has printed several articles analyzing the purpose of CWS, the process, and the nature of the culture.  It is the most recent article in the Messenger that drives this analysis.  The Messenger piece is reproduced HERE for those who don’t read the Messenger (i.e. those with no small pets, messy hobbies or wood stoves).

In that article, the editor of the Messenger focuses on the loss of social and civil liberties the parents suffer.  The Messenger had been following the case of a family, known well enough in Downieville, and their struggle with Sierra County Department of Health and Human Services.  In order to prevent that public exposure, HHS has requested, and not surprisingly the judge has approved, a gag order on the parents.  The reason provided by the agency, and accepted by the judge, is to protect the children from public exposure.  That would be great, if it weren’t bullshit.  It is, though, and here’s why:

First of all, the Mountain Messenger never revealed the identity of the family or others involved in the case, and most of all, not the names of the children.  The Messenger has been trying to alert the populace in a general way, using not just one case, but others.

Secondly, the people of Downieville generally know more about this case than the Messenger does.  From the outside, it seems the agency is attempting to use its trump card, the dark secrecy under which CWS works, to continue to over-serve the family without interference from the press or the public. Excluding the press in a free society is usually a sign of stratagem.

This article intends to discuss what seems to be the current culture in CWS in the state, and particularly in Sierra County.  Then, why the situation has come to be as it is.  Finally, what avenues of correction there might be.

Where is Sierra County now, in terms of Child Welfare Services?

When you work for a newspaper, and people realize something is about to break on a local agency or county department, people come out of the woodwork with their stories.  They never want to be quoted (they don’t want to go back into CWS hell) but they’re often very forthcoming with details.  Granted, they spin the story.  Everyone does, that’s how the social worker convinces the judge (usually not much of a task).  Even so, strip the story of the nuance and leave just detail and you begin to see a pattern of over-involvement and over-service.

The purpose of child welfare services is to protect the child from harm, or the great likelihood of harm, through abuse and neglect by the parent or guardian.  That’s all.

What it isn’t:
It isn’t to ensure the kid goes to school.
It isn’t to ensure the kid doesn’t piss off the neighbors.
It isn’t to ensure the family acts and looks in a way that makes the decent folk of the town comfortable.
It isn’t to ensure that every kid has a Walt Disney life.
It isn’t to re-socialize the kid or the family so they think and act and look like the families on Father Knows Best.

It especially isn’t the role of CWS to take kids from homes that aren’t that bad and stick them in foster homes that aren’t that good.
To be sure, a rational person would want the schools and probation and child welfare services and even the cops and the courts working together to protect children.  As a broad social goal, that’s a great idea.  However, that shouldn’t mean that the personnel from these agencies, who work together all the time and speak the same lingo, should gang up on a family to be sure there’s no escape.  That easily happens when social workers and cops forget their roles and start working too closely together.  There’s been a real push, through regulation and especially through funding, for that unhealthy closeness to develop.
It’s important to remember that CWS is charged with the safety of the child, not the re-culturalization of the family or community.

The Influence of too much money

As time has passed and more and more money has been made available, more and more people have come to specialize in “services to families” and the administration of the millions of dollars associated with that. 

These people are presumed to be experts, and so they’re given a pretty free reign when it comes to defining what “harm” and “risk” are.  Those used to be pretty common sense things.

One good example is the term “injury”.  A parent or guardian has physically abused a child when they intentionally produce an “injury.”  By “intentionally” we mean the parent knew, or should have known, that the action would injure the child.
If a parent grabs a wire hanger or pulls the cord off a toaster and beats the kid until there’s a series of welts, most people would agree that is physical abuse.  If there were stages of healing welts, meaning the child was beaten in such a manner regularly, most people would agree that is serious, on-going physical abuse.  Two or three generations ago, such treatment would have been considered possibly appropriate, but in our current social climate, it simply isn’t.

However, leaving the determination of “injury” to well paid professionals using “an abundance of caution” has broadened the use of the term to the point that if a child arrives as school with a mark, even one that’s rapidly fading, it’s considered an “injury” and people rush to get it documented before it fades.  This is intended by professionals to reduce or eliminate spanking from the parent’s repertoire of discipline, and from the culture.
That might be laudable, or it might not, but either way it isn’t the job of child welfare services to do that.  

Two Realms
It is important to remember that CWS social workers live in two realms.  One is the legal realm of Welfare and Institutions Code
 and MPP Division 31  and so on, meaning the world of the bureaucrat.  

But they also live in the philosophical realm of social work.  A key theme in social work is to be a “change agent” for good; “good” here being what they in their philosophy, think is good.

“A historic and defining feature of social work is the profession’s focus on individual well­being in a social context and the well­being of society.“  From the National Association of Social Workers Preamble to the Code of Ethics

In short, there is a shared value for being a “change agent” and by talking among themselves in “training” and “continuing education” they’ve arrived at a place which has left the communities they serve, and some would suggest the entire real world, behind.

The expansion of the term “injury” has followed the expansion of the term “assault” and the other markers by which the legal threshold of intercession has been lowered by cops and social workers.  The expansion of these definitions of “abuse and neglect” has opened a broad gray area in which social workers are free to roam.  Currently, it is popular to consider “domestic violence” as “emotional neglect” because it is believed by social workers that significant trauma occurs with even small amounts of “domestic violence”, even though there is no real evidence that it does, or that it does to the degree which would warrant government intercession.

This shifting in definitions forces a shift in culture, one we didn’t agree to or approve.  It also results in more families going into the system.  And, once you’re in the system, it’s like having a social worker with you 24/7.

Unhealthy Helpers
The problem is worsened by “mandated reporter” laws which turn people like teachers, playground monitors, letter-carriers and anyone who works with children into forced government snitches.  This army of forced informants, something that would be abhorrent in a free society but is well tolerated in California, funnels reports to CWS, not on what they know to be child abuse or neglect, but what they fear or hope is.  As long as everyone who works with kids is liable if they don’t snitch, there will be, as there are now, far, far more reports than are appropriate.  This is why most referrals to CWS are “evaluated out”.  It should be up to a person’s conscience to report when they suspect child abuse, not up to government strong-arming.

Isolation of the parents
In the Messenger article a key frustration came from the fact that the secrecy of CWS protects the agency, but the effect goes far beyond that.  The “gag order” on the parent is the keenest example.   Being in a CWS case is like having a plague; no one with kids wants to catch it from you.  In the Downieville case, the agency has reportedly dogged the parents and even other parents who know the parents.  This has a very chilling effect, particularly when friends and families know the parents and know they really aren’t that bad.  If they could be busted, why not another family member or friend?  

Fear of CWS involvement is always a discouraging factor, one that increases difficulties for the parent.  Parents very often lose jobs, friends, and family connections when they’re receiving “help” from CWS.  Some friends are a little too persistent, though, hence the “gag” order featured in the Mountain Messenger article.  

Indeed, the process actually puts the parent under a gag order to themselves.  You see, if the social worker believes you have a problem, and they can convince the judge you have a problem, then you’d better agree that you have that problem, or they can’t cure you of it, and you’ll never get your kid back.  No BS.
Some CWS reform advocates suggest moving the decisions from “civil” rules in “family” court, where the parent’s rights are limited and the power of the court and the agency is large, to criminal style courts where the rules of evidence are more strict and the burden of proof is greater.  

With the parents so isolated, it’s impossible for the public to call CWS to task.
Or, is it?  To find out, we have to examine where the agency obtains its power.

The Source of Power
CWS has such power today for two reasons.  First, it has become vogue in government to think that the unruly in the population can be tamed if they are caught and re-socialized early enough.  It isn’t just control freak Republicans who want to keep their car stereos safe, the “we’re from the government and we’re here to help” Democrats like their stereos, too.  Catch anti-social kids early and train them to get a job and pay taxes.  As a result, under the guise of helping children they are funding ways to increase government intervention.  Not enough money, though, because the states can’t house all the kids they take away either in CWS or probation.  

Further, because it’s cheaper to send a kid to a guardianship than to provide services to families over the long haul, the feds are demanding that kids not keep reappearing in referrals.  Take the kid and keep it.  Never let parent’s history die, structure the system to accumulate a negative history on the kid and the parent forever.
It sounds like a great idea, prevent kids from being abused and neglected over and over.  In the real world, though, it takes awhile for very young or mentally or emotionally challenged parents to mature into the job of parenting.  They’re no longer given the services for that.
Further, this new approach doesn’t only look at what has happened in the family, it also begins to define what will happen, by considering “risk” to the child.  “Risk” means something that might happen in the future.  When you expand your territory to cover what MIGHT happen, there is literally no escape for the family.

A Problem of Expectations
Social workers and probation officers, and even judges, are trained not only how to provide services, but how to see the situation, what expectations they should have.  Almost never, ever at one of these training and culturalization sessions will anyone say “leave the family alone all you can.  They have a right to live as they are, and reproduce their culture even if you don’t like it.”   However, the law does actually say that.
In the end, continued funding requires continued cases.  If HHS and the courts told the state, “well, we’ve stamped out child abuse and neglect in the county” they’d be looking for work.  Probably not going to happen.  Instead, as the incidences of true abuse and neglect disappear, partly because parents are getting wiser and partly because the county is losing its kids, the agency will respond by broadening the definitions which will allow their involvement, and they’ll hang on to the kids they have longer.  

A Problem of Perceptions
The second reason the agency has such power is us, you and I.  We want kids to have a good life.  We want them to go to school and get an education and get good jobs, and live clean, straight lives; in short, we want them to have better lives than we typically have, and indeed, better lives than most people actually have.

This doesn’t make us bad, but it does make us unreasonable.  In real life, there aren’t enough jobs to go around.  In real life, some people are going to die.  It’s terrible, but in truth it isn’t going to happen very often.  Most often when it does happen it will happen to a child, or woman, or old person, who is poor.  The government has no solution for poverty or genetics.

However, we can’t quite accept that science can’t over-come the failings of real life, or that enough helpers can’t save all kids.   That’s partly because the media (except for the Prospect, of course!) thrives on sensational stories, and since people who have been accused of child abuse or neglect are yukky, they prefer to get the official blab from the spokesperson for the agency.  All we ever hear is how bad off kids would be without “services”.  
It’s also because the public relations machine for CWS doesn’t present an honest picture of what they do.  They tend to emphasize the relatively few really serious cases, and ignore that fact that most calls are for “neglect” which turns out to be another name for “poverty”.  That, we don’t hear.

Besides, when we say we want CWS to interfere with families, we don’t necessarily mean our families, or our friends’ families, we mean other families, you know, the terrible ones.  But, the system doesn’t work like that.  When you clamor for more cops and social workers in families, you should expect it to be your family.
As a result, we, the public, actually encourage cops and social workers and school personnel to do all they can to interfere.

What is the solution?

There are several changes which would help.

Too many workers
First of all, clearly Sierra County Health and Human Services has too many staff.  Cases which get dragged on for years here are kicked out of the system as quickly as possible in other counties.  Reducing the ability of social workers to give the dwindling number of kids in our county 24/7 attention would allow families their own lives more.

Input from real citizens
Secondly, the residents of the county could talk among themselves, meaning not just school personnel, or HHS staff, who speak the lingo and accept the vision, but those few people who still have kids in the county.  It might seem in recent days that kids aren’t very highly valued here, but we have a county supervisor coming up who does have kids, and that evaluation of kids might change.  How do our families feel living in a county where the rate of CWS involvement is several times higher than the state average?  Are we all really such bad parents, or are we just getting too much attention?

In the end, there are really only two ways CWS can be controlled.  

The individual approach:
The first is for them to “help” the wrong family.  It has always been known among service providers that the one real antidote for intervention is a good attorney.  If a family has one, Sierra County CWS is not likely to prevail.  If they have the cash for their own experts, Sierra County CWS will not prevail. It’s been demonstrated in counties much more wealthy than this one that money can save a family.  Most families don't have that kind of money. 

The Community approach:
The second is more pro-active and less destructive to the county.  The Board of Supervisors actually holds the power of CWS in the county.  The law is structured to give considerable power to the Director of human or social services in the county, but that authority is assumed to descend through the Board of Supervisors, as the funding does.
Also, in most counties, county funds account for 24-30% of CWS funds.  (See also HERE )  Though we haven’t had a chance to research that amount in our county, chances are the supervisors control more of the cash than is apparent.

No one should want to see CWS dismantled in the county. But, we should want to see the pressure taken off our families.   Short of a lawsuit, intervention by the Board of Supervisors might be the best alternative.

How could this be accomplished?  That’s for the Board, in consultation with staff and with input from the community, to decide.  In such a discussion, County Council James Curtis would be in an odd position, since that office writes the “civil” actions against parents and advises the Board on legal matters.  However, Curtis has demonstrated his ability to remark critically on situations while acknowledging his participation in the past, and the Prospect would encourage the Board to include Mr. Curtis in such a discussion, even if it isn’t in an advisory capacity.  

And the need for that “intervention” has been made very clear.  Nothing speaks louder than a gag order!

Yes, yes, we know the 1st Amendment only applies to Congress,
but the California Constitution also protects the right to free speech.

DID YOU KNOW that it is against the law for a social worker or other staff member associated with social services to reveal confidential information about you?  They can’t reveal significant facts about you even in the course of investigation.  They can't even share it with other workers who are not on the case!  If they do, there are criminal penalties and you can sue for damage$!  Now, that’s a gag order!


Important Court Cases:
Calabretta v Floyd 
Cops and social workers can’t coerce parents in to participating or conduct intrusive investigations on a child without parental or court permission.
Wallis v City of Escondido 
Even cops can’t simply grab a kid, there must be a clear and immediate danger (reasonable cause or immanent danger) to the child or they must obtain a court order.  Further, they may not conduct intrusive testing on the children with out a court order.

Resources: websites working toward child protective services reform and educating families:
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