Why the system fails abused children; putting the child's interests back in the equation.

Editors' Note: Douglas Besharov has spent much of his professional life trying to answer a difficult question: What goes wrong when children are abused and the system fails to protect them?A former New York City prosecutor and founding director of the National Center on Child Abuse and Neglect, Besharov is now a consultant to child welfare agencies around the country. He also serves on New York City's Child Fatality Review Panel, a position he says he keeps year after year so he won't lose touch with the real world

The real world is horrifying for children like Nadine Lockwood, who became one of Besharov's fatality cases last year after she starved to death at the hands of a drug-addicted mother. Although Nadine's mother had been reported to child welfare authorities many times, the agency kept closing the case.

About 1,500 children die every year in this country under conditions that indicate abuse and neglect, according to the National Committee to Prevent Child Abuse. Why are cases like Nadine's so common? ATLA Law Reporter Editor in Chief Liane Leshne spoke with Besharov in his Washington, D.C., office at the American Enterprise Institute for Public Policy Research, where Besharov is a resident scholar. He offered his insights on why the system fails, what the roots of the problems are, and how misconceptions can endanger the reform process.

In your recent Washington Post article, "When Home Is Hell," you describe how you visited the natural mother of children in foster care and saw that her home was in a horrendous condition but were unable to persuade the caseworker to begin adoption proceedings. Can private citizens challenge a caseworker's or agency's decisions?

Since these cases tend to be confidential. it is almost impossible for someone to know what is really happening and what the decisions are. So the challenges to decision making must come from the people handling the case--the caseworkers--or, sad to say, in later litigation, which is sometimes needed to correct not just the system's abuses, but systemic problems.

What procedures are involved when a caseworker decides a child should be removed from an abusive home?

There are variations across the country, but what happens in most places is a caseworker sees something that seems to justify removing the child from the home. The caseworker calls a supervisor and asks for permission to remove the child. The supervisor says "yes" or "let me check with legal," because there may be a tricky legal question. Unless it's a dire emergency, the caseworker alone does not make the decision to remove.

When it is a true emergency and there is no time to get a court order, the agency--through the caseworker--can make the decision to remove in about half the states. In the other half, where child protective agencies are not authorized to take children from the home, the agency has to call the police, and they make the removal.

Almost all states require that the decision to remove be reviewed by a court. So, within a specified time these cases have to go before a judge, who either ratifies or reverses the decision to remove the child.

Do most states have written guidelines that help caseworkers decide when children should be removed from the home?

Yes and no. Most states have guidelines, but most are of little help. Many, for example, are tautological; they say, "Remove a child when it looks as if the child is in immediate danger."

Are a certain number of wrong decisions inevitable no matter how well the system is working?

Yes. This is not like heart surgery where there are objective standards. It's very hard to make the right decision all the time. Sometimes facts go undiscovered. Sometimes conditions change, and it's impossible to expect that every decision caseworkers and agencies make will be absolutely right. Part of the test is, "Was the decision correct given what was known or should have been known at the time?"

I once had a case where the mother had been reported for allowing her child to play outside in November in his underclothes. The agency investigated, determined it was a problem, and said to the mother, in effect, "Don't do this again."

For six months, the child had proper clothes on and there were no more reports. Then, he turned up dead. What had happened in those six months was the mother got a new boyfriend, and the boyfriend killed the child. Now, there was no way in the world that, six months before, the caseworker could have predicted this.

How do caseworkers balance the need to be sure there is abuse going on in the home with the need to prevent future harm to the child?

The tragedy in these cases is that we have simultaneous over-intervention and under-intervention in the system, and a child can suffer in either event.

I believe we have a tremendous problem of over-reporting. For every four cases that are reported to the authorities, only about one or one-and-a-half result in any kind of action. The rest are dismissed as inappropriately reported.

And in the past few years, we have had an increasing number of lawsuits filed about the failure of public agencies to screen cases to control inappropriate reporting. The most recent one is in Connecticut, where a woman has been reported a number of times by an anonymous person, and she was cleared each time. She insists she's innocent.

I don't know if she's innocent or not, but the agency should respond by either refusing to accept these reports or by asking, "What kind of insidious abuse is taking place that neighbors or friends see it, and then we send someone to check and they don't see it?"

In the Nadine Lockwood case, neighbors and relatives had been calling for months to say this child was in serious danger, and many of the reports were anonymous. The caseworkers would go out and not find anything, and instead of asking, "Why are we getting so many anonymous reports that we're marking unfounded?" the agency just kept closing them.

So there is this double responsibility: Screen out cases that seem malicious or determine whether something serious is happening that requires a second and more careful look.

U.S. Health and Human Services Department Secretary Donna Shalala recently reported that child abuse doubled between 1986 and 1993 and that the number of serious cases quadrupled. Do you agree?

No, I don't. First of all, the secretary's statistics come from an obscure research project conducted several years ago, and the methodology used throws those figures into serious doubt.

Second, the amount of child abuse in this country is determined by how child abuse is defined. In the past 30 years, we have been engaged in the process of sequentially expanding the definition. The more the definition is expanded to include additional perpetrators or to lower the threshold of harm needed to establish abuse, the more cases you get.

Thirty years ago, if someone slapped a child for misbehaving, people might have said that the child deserved it. Today, I think they would say that's bad parenting. What the Health and Human Services (HHS) study says is, "That's child abuse." It may be bad parenting, but I don't think that it's child abuse.

I would add that although I think this study exaggerates the amount of child abuse, it is a very serious problem, and, from everything I can find, it is increasing, just not at the level described by HHS.

You have said you believe caseworkers need to be able to say to a severely abusive mother, "You've had two chances or three or four. Now we need to take your kids and give them a safe home." Should there be a cutoff number of times of documented abuse after which a child will not be sent back to abusive parents?

The point I was trying to make is that there is such a thing as an appropriate time to give up on a parent. We seem to feel as if we should keep trying and keep trying with the parents despite the cost to the child. I want to get the child's interests back in the equation.

Having said that, it's tricky to come up with a specific number because of the definitional issues. For example, I think the system should react much more effectively and firmly where a parent has killed one of his or her children. Surprisingly, the system doesn't do that. In most jurisdictions, if a parent kills a child, no presumption of unfitness is raised. So, for example, even in New York's most notorious cases, there has been no serious effort to terminate parental rights because the law does not seem to authorize it. And, yet, the parent's other children could be in serious jeopardy.

Is that what you mean when you say the attitude of "preserve the family at all costs" is embodied in federal and state law?

Yes. In part, it is in case law that has developed in the absence of strong statutory provisions. And partly, it is in specific federal requirements to make all "reasonable efforts" before trying to find a permanent home for the child.

Now, I don't blame the drafters of the legislation for requiring all reasonable efforts. But it sure would have helped if they had said, "Footnote: Sometimes, no efforts are reasonable."

The regulation writers could also have provided some kind of common sense escape clause. They could have said, "Some times it is not appropriate to make any efforts whatsoever." They did not, and, as a result, the states have gone too far in one direction. And a backlash is building. The danger with a backlash is that it goes too far in the other direction.

Here I am saying I want more intervention, more termination of parental rights, more adoption. But there is a real danger that we will get too much. That's why, as public concern grows, the political system has an obligation to respond by changing the law before pent-up frustrations force an even more extreme change.

Some observers criticize family preservation because it focuses on crisis intervention rather than on the root of the problem, which they say is poverty. Do you agree?

There are many reasons why parents have trouble raising their children. One major reason is poverty. But if it were only poverty, we wouldn't have any child abuse in wealthy communities.

There are some families where the issue is poverty; some where the issue is race; some where the issue is drugs. There are other families where it is ignorance, isolation, mental retardation, emotional problems, or stress.

At heart, family preservation is crisis intervention, and we know that it can work for some families--an effective therapist can slide in and change the fundamental family dynamics. But that won't work for an inner-city mother who is caught in the third generation of seemingly hopeless deprivation and degradation. Other poor inner-city mothers, however, might benefit from these services.

Too many people want these simple, one-size-fits-all solutions, and that's what gets us into trouble.

It seems wrong decisions can be made at a number of different stages: Should a child in the home be removed? A child in custody be returned home or placed in foster care? A foster child freed for adoption? At which stage does the decision-making process break down most often, and why?

The process totally breaks down, with almost no decision making, on the question of the termination of parental rights and adoption. So few cases end up in termination that one can't even talk about statistical rates. One has to talk about absolute numbers because the rates are so low. And that's why President Clinton's proposal, as I understand it, will be to "double the number of adoptions in a year." That is how crude the measure is of what is going on.

Is that proposal realistic?

It's a public relations slogan, but that may be what it takes to change the underlying attitude of caseworkers and judges. But I fear that the goal is unreachable and that states would find some way to fake it. For example, they might manipulate the definitions by putting children with grandparents and calling it adoption.

What is involved in a decision to terminate parental rights, and what are some of the main obstacles?

It requires a finding from the judge that the parents are unfit and are unlikely to become adequate parents. Because the interests of the parents are so great, it requires a high quantum of proof, usually "clear and convincing evidence."

One main obstacle is fear--or a recalcitrance--to give up on the parents (and especially mothers), because terminating parental rights is such an extreme act. As a society, we treasure the mother-child tie, and we don't like to terminate it.

On top of that, many adoptions fail. As many as one-third end up with the child being returned to the foster home. These are called "disrupted adoptions."

Judges know that if they terminate parental rights, the child may not find an adoptive home, so many say, "I won't terminate parental rights until you find an adoptive home." Of course, the agency says, "Wait a minute, how are we going to find an adoptive home until you terminate parental rights?" So we have a situation of "Who goes first?" We must come to terms with this problem.

Why do so many adoptions fail?

Some of these kids are damaged goods. They've been through hell, and many adoptive parents don't appreciate this. They think the kid is cute and will do OK. But children--especially older children--who have gone through this kind of trauma can be disruptive. They are infamous for setting fires, eating goldfish, and so on. People decide to make a child part of their family and become financially responsible for him, and in a week he's setting fires. They don t want him in the house, so out he goes.

You said in your Washington Post article that there are children who have little hope of being adopted. Is it because these children fit the profile you just described?

Yes--although many don't even get that far. These are older children who have been though various stresses and travails, and every year it becomes harder for them to handle a family situation.

That's why many child advocates were calling for a return to orphanages and academies before Newt Gingrich gave the term "orphanage" a bad name. These kids need a structured environment that foster parents often can't provide. Just like we put the children of the middle class in academies and boarding schools, so should we consider using similar institutions for the maltreated adolescents who need them.

In DeShaney v. Winnebago County Department of Social Services, the Supreme Court held that failure to protect a child under home supervision was not actionable because the state's knowledge that a person is in danger does not, by itself, give rise to a constitutional duty to protect. Is the Court likely to overrule DeShoney?

No time soon. I don't see a viable case that the Court might use to revisit the issue. The decision against granting a remedy in this case was based on the High Court's palpable hesitancy to find an affirmative duty on the part of the government to fight fires, to prevent crime, and so on. I don't think that the justices want to open that door.

But what about the argument that when a child services agency comes in and takes over, it cuts off the rights of private people or other agencies to intervene on the child's behalf?

My answer to that is a hard-nosed one: That's what state law is for. I'm a great believer in using litigation to remedy the weaknesses of agencies but not at the cost of messing up the Constitution. These are state law issues.

The states have proven themselves quite willing to take on these kinds of issues, and I think that the Supreme Court knew that. There's no need to create a new constitutional right with no limit of where the right might go.

Do you believe lawsuits are the best vehicles for changing the ways in which caseworkers and agencies operate?

The best vehicle is moral leadership on the part of our political leaders. We need more politicians, for example, saying there is nothing wrong with transracial adoptions. We need more politicians saying that more children ought to be adopted.

Having said that, I believe litigation can be tremendously helpful because it can create the agenda for reform. But I would make a distinction between lawsuits for damages and the class actions that are proliferating under the American Civil Liberties Union.

I don't think that lawyers and judges can run big, complex agencies. I don't think that pleadings and hearings come anywhere close to reaching the issues of administrative command and control. Real change comes when someone like Mayor Rudolph Guiliani of New York says, "I want this changed" and appoints a buddy of his--[New York City child services commissioner] Nick Scopetta--and says, "Change the agency." That's the way it happens.

I think lawsuits for money damages are different, though. They send a strong signal, and they set a marker for the kinds of things agencies should or should not do. Then the political leadership can build a program around the marker.

That's the distinction I'd make. If you sock an agency with lawsuits for not promptly sending caseworkers out to investigate a report, then the agency head says, "OK, we're going to change this." And then you leave it to them to change it. But don't go back and ask them to give you a plan and involve a bunch of $400-an-hour experts to review the plan. If they don't fix the problem, I say, "Sue them." They'll soon get the message.

How else can lawyers become involved besides prosecuting these cases?

There is no better way to spend a few hours a month than to volunteer to handle one of these cases. In almost every community, it's possible for a lawyer to volunteer to work with either abused children or their parents or to help an agency plan a program.

I have very fond memories of doing this kind of volunteer work, even when it was most frustrating, and I would highly recommend it. It certainly is a change of pace from traditional practice areas like wills and estates, and it gives a broader sense of some of the challenges and problems facing our society.

Another way to help is by donating money to a good agency.

Tell me about one of the most rewarding cases you ever worked on.

We had a nine-year-old boy who was being raised by his parents, and the father was severely alcoholic. The boy was taken from his parents and put in foster care. Within three months, his IQ went up 30 points. It was such an easy fix.

But this case is a bittersweet memory for me because even though the child did so well in the new surroundings, we didn't have the legal framework to recognize the reality that he should not return home even though he loved his parents and should have continuing contact with them. He just couldn't live with them. We didn't have a framework for appreciating this reality and for guaranteeing his "legal safety."

What I mean by "legal safety" is guaranteeing that after several years, someone would not come and re-open the proceedings. We have lost that legal permanence in the past 20 years, and that is a serious problem. We now have requirements that child placements be reviewed periodically, so that a judge is free to shift the child's placement. This creates a tremendous amount of uncertainty.

You could see the difference that we were able to make in this child's life. It was quick. It didn't involve rocket science, it involved love. But it was bittersweet because although we could make this dramatic difference, our legal system didn't know what to do with the case because at any point it could go to a new judge who might say, "This child was never hit. Why is he in foster care?"